Baihinga v The Secretary of State for the Home Department (rule 22; human rights appeal: requirements)
| Jurisdiction | UK Non-devolved |
| Judge | President |
| Judgment Date | 05 February 2018 |
| Neutral Citation | [2018] UKUT 90 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 February 2018 |
[2018] UKUT 00090 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Lindsley
For the Appellant: Mr O Haastrup, Solicitor of Nathan Aaron Solicitors
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
Baihinga (r. 22; human rights appeal: requirements)
1. The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review ( JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).
2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent's guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.
3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager's decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.
4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.
The appellant is a citizen of Sierra Leone, who was born in July 1986. She was granted indefinite leave to remain in the United Kingdom on 10 September 2003.
On 21 June 2004, the appellant left the United Kingdom, returning to Sierra Leone. In June 2015, the appellant applied for entry clearance as a returning resident, pursuant to paragraph 18 of the Immigration Rules.
On 26 June 2015, an entry clearance officer refused the appellant's application. The notice of decision stated that the appellant had arrived in the United Kingdom in February 2001 and left in 2004. That was, accordingly, a period of absence of more than 2 years (indeed, over eleven years at the date of refusal).
Paragraph 19 of the immigration rules provides that a person who does not benefit from paragraph 18 (which enables a person to obtain entry clearance provided that, inter alia, they have not been away from the United Kingdom for more than two years) may nevertheless be admitted as a returning resident “if, for example, he has lived here most of his life”. There is, thus, a discretion that may be exercised in favour of the person.
Accordingly, the entry clearance officer considered the matter and concluded as follows:-
“…
• Given that you have not been in the UK since 2004 and the amount of time you have spent there since obtaining your indefinite leave to remain, I am not satisfied that you have demonstrated a strong connection with the UK. To be considered as a returning resident you need to show that you are habitually resident in the UK and that any absences have been of a temporary or occasional nature, however I do not consider an absence of over eleven years to be temporary and it appears that you are settled in Sierra Leone.
• I have considered the compassionate circumstances of your application. You have stated in your visa application form that you left the UK in 2004 because your grandmother in Sierra Leone was seriously ill. However, you have stated that you lived with her until 21 September 2013. In his letter of support submitted with your application your father confirms that you were living with your grandmother until 2013 and that since returning to Sierra Leone you have completed a college course. He states that you cannot find employment in Sierra Leone and that you have no close relatives in Sierra Leone to support. I have considered that you are 28 years old and that you have submitted evidence that you have received an education. It is not clear why you are unable to find employment. You have submitted a limited amount of money transfer slips as evidence that you are financially dependent on your father. However, these have been submitted in isolation and I am not satisfied that alone they demonstrate a dependence.
I am… satisfied my decision to refuse your application is proportionate under the Immigration Rules.
Given all of the above, I am not satisfied that you qualify for entry as a returning resident because you do meet (sic) [presumably, do not meet] the requirements of paragraph 18”
Underneath these passages, the notice of decision stated: “You are entitled to appeal against this decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002”. An appeal form was provided for this purpose. It was also stated: “If you decide to appeal against a refusal of this application, the decision will be reviewed, with your grounds of appeal and the supporting documents you provide”.
The appellant filed a notice of appeal to the First-tier tribunal against the entry clearance officer's decision. As promised in that decision, an entry clearance manager reviewed the grounds of appeal and supporting documents. Having done so, the entry clearance manager, in a decision dated 13 November 2015, concluded that the decision of the entry clearance officer was correct. It was in accordance with the law and the immigration rules; and the entry clearance manager was not prepared to exercise discretion in the appellant's favour.
The entry clearance manager then said:-
“I have considered the appellant's rights under Article 8 of ECHR. Article 8 of the ECHR is a qualified right, proportionate with the need to maintain an effective immigration and border control and decisions under the Immigration Rules are deemed to be compliant with human rights legislation. Although the appellant may have a family life with relatives resident in the UK, I am satisfied that the decision is proportionate under Article 8(2). I note that no satisfactory reason has been put forward as to why the appellant's family in the UK are unable to travel to Sierra Leone to be with the appellant. I am therefore satisfied that the decision is justified by the need to maintain an effective immigration and border control.
I have also considered whether the particular circumstances set out in the appeal constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of entry clearance to the United Kingdom outside the requirements of the Immigration Rules. Following a thorough assessment of the appeal I am satisfied that there is no basis for such a claim.
Given all of the above, I do not consider that the evidential balance has been tipped in the appellant's favour, as I maintain the decision to refuse entry clearance”.
At some later point, the appellant travelled to the United Kingdom and was granted temporary admission. She made an asylum claim, which has subsequently been withdrawn.
On 22 December 2016, the appellant's appeal came before First-tier Tribunal Judge Eldridge, sitting at Harmondsworth. The presenting officer submitted to the judge as a “preliminary issue” that the appellant had no right of appeal “because of the changes in appeal rights brought about by the Immigration Act 2014” (paragraph 4 of the judge's decision). Mr Haastrup, who appeared on behalf of the appellant, sought an adjournment of an hour to consider the matter “which had been raised only at the hearing”. Judge Eldridge, accordingly, granted a short adjournment, following which the presenting officer renewed her submissions and Mr Haastrup addressed the judge on the issue. Mr Haastrupt sought a further adjournment, which was not opposed by the presenting officer.
Judge Eldridge adjourned the matter, which he considered to be “an issue of great importance to the appellant”, fixing a new hearing date of 13 January 2017.
On that date, Judge Eldridge heard submissions on the issue of whether there was a right of appeal. In a decision promulgated on 25 January 2017, the judge held as follows:-
“8. The Immigration Act 2014 made considerable changes to the rights of appeal under the Nationality, Immigration and Asylum Act 2002. The changes made by the 2014 Act have been brought in effect (sic) in a series of Orders, and the most pertinent are Commencement Order No. 3 made on 15 October 2014 and Commencement Order No. 4 made on 25 February 2015.
9. My understanding of the legal position is that there is now no right of appeal in respect of applications made after 6 April 2015, unless the decision concerned is a refusal of an asylum, protection of (sic) human rights claim. This was not claim on any of those three bases...
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