Mansur (Immigration adviser's failings: Article 8) Bangladesh
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Lane J |
| Judgment Date | 26 July 2018 |
| Neutral Citation | [2018] UKUT 274 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 26 July 2018 |
[2018] UKUT 274 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Lane, PRESIDENT
For the Appellant: Mr P Turner, instructed by Nova Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer
Mansur (immigration adviser's failings: Article 8) Bangladesh
(1) Poor professional immigration advice or other services given to P cannot give P a stronger form of protected private or family life than P would otherwise have.
(2) The correct way of approaching the matter is to ask whether the poor advice etc that P has received constitutes a reason to qualify the weight to be placed on the public interest in maintaining firm and effective immigration control.
(3) It will be only in a rare case that an adviser's failings will constitute such a reason. The weight that would otherwise need to be given to that interest is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes such advice will normally have to live with the consequences.
(4) A blatant failure by an immigration adviser to follow P's instructions, as found by the relevant professional regulator, which led directly to P's application for leave being invalid when it would otherwise have been likely to have been granted, can, however, amount to such a rare case.
The appellant, a citizen of Bangladesh born in 1980, appeals against the decision of First-tier Tribunal Judge Hunter who, following a hearing held at Hatton Cross on 16 December 2016, dismissed the appellant's appeal against the decision of the respondent dated 15 July 2015 to refuse the appellant's human rights claim.
The fact that the judge considered he was deciding an appeal against a decision to refuse the appellant indefinite leave to remain, though wrong, is immaterial for present purposes. So too is the fact that the judge ended his decision by purporting to dismiss the appeal “under the immigration rules and on human rights grounds”. This was a human rights appeal. Accordingly, the sole ground of challenge was that the respondent's decision was unlawful under section 6 of the Human Rights Act 1998 (section 84(2) of the Nationality, Immigration and Asylum Act 2002).
The immigration history of the appellant is essentially as follows. In April 2005 he arrived in the United Kingdom as a student. Further leave in that capacity was granted to him by the respondent until 2010. In that year, he was granted leave to remain until March 2012 for post-study work. In March 2012 he applied again as a student and leave was granted for that purpose until 31 July 2013.
In July 2013, the appellant applied, during the currency of his leave, for leave to remain as a Tier 2 General Migrant. That application was refused by the respondent on 2 October 2013.
The appellant appealed against the refusal. His appeal was dismissed by the First-tier Tribunal on 7 August 2014.
At this point, the chronology becomes crucial.
Following the refusal of an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal, the appellant made an application to the Upper Tribunal for such permission. As a result, the leave which the appellant had been granted in March 2012, until 31 July 2013, continued to be extended by reason of the operation of section 3C of the Immigration Act 1971. Section 3A(2)(c) provides that leave is extended during any period when an appeal is pending within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002. Section 104(2)(a) provides that an appeal is pending while an application for permission to appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination.
Thus, on 7 October 2014, the appellant enjoyed section 3C leave. However, subsection (4) of section 3C contains an important restriction upon what a person with section 3C leave can do:
“(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.”
On 7 October 2014, the appellant instructed an organisation called Immigration & Work Permit Ltd (“IWP”), which was registered with the Office of the Immigration Services Commissioner (“OISC”).
On 7 October 2014, the appellant made an online application to the respondent for leave to remain as a Tier 4 General Student. The appellant's case is that, on the same day, he instructed IWP to withdraw his application to the Upper Tribunal for permission to appeal against the decision of the First-tier Tribunal. IWP, however, did not withdraw the application for permission until 10 October 2014.
For the appellant, the result of this sequence of events was profound. The application for leave which he had made on 7 October 2014 was invalid because it fell foul of section 3C(4) of the 1971 Act.
The invalidity of the application was not, however, drawn to the appellant's attention by the respondent until 29 March 2015. In fact, on 4 November 2014 the respondent had written to the appellant to confirm that “your application is now valid”. Had the appellant be informed at that point of the fact that the respondent was treating the application as invalid because of the section 3C(4) issue, rather than several months later, the appellant's contention is that he would have been able to take steps to regularise his position.
In the event, on 21 April 2015, the appellant applied for indefinite leave to remain in the United Kingdom. The appellant relied on paragraph 276B of the Immigration Rules, which reads as follows:-
“276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”
In the respondent's decision of 15 July 2015, refusing the application for indefinite leave and, additionally, refusing the appellant's human rights claim, the respondent explained why the appellant had failed to satisfy the requirements of paragraph 276B:-
“Your immigration history above confirms that you were without any valid leave from 21 October 2014 until 20 April 2015.
Your application for indefinite leave to remain on the basis of having completed a period of 10 years continuous lawful residence is refused under paragraph 276ADE with reference to Paragraph 276B(i)(a) and 276B(v).”
The First-tier Tribunal Judge noted that, whilst in the United Kingdom, the appellant had obtained an MSc in International Marketing Strategy at the University of East London and a Bachelor of Business Administration degree from the London Commonwealth College. The appellant told the judge that if he had been permitted to stay in the United Kingdom, he planned to set up his own business.
The judge was informed that the appellant had complained to OISC about the services he had received from IWP and that he had received the outcome of his complaint in May 2015.
At this stage, it is necessary to set out the relevant conclusions of the OISC investigation:
“26. In response to the Complainant's allegation that IWP did not withdraw his application for permission to appeal on the agreed date i.e. 7 October 2014, the organisation explained that the Complainant did not contact them following the meeting of 7 October 2014 and that he only contacted them on 10 October 2014 and told them to withdraw the application. In support of their rebuttal IWP provided a typewritten attendance note dated 7 October 2010 and a client care letter of the same date. In both documents it is stated that the Complainant had told IWP that he had made an online application and wanted the organisation to withdraw his application for permission to appeal to the Upper Tribunal. The wording in both documents therefore appears to support the Complainant's allegation that he had asked IWP on 7 October 2014 to withdraw his application for permission. Furthermore in a copy of a cover letter dated 7 October 2014 addressed to the Home Office, IWP explains, “He (referring to the Complainant) applied before under Tier 2 General, the application was refused and his appeal will be withdraw [sic] on 8 October 2014”. Therefore the Commissioner is satisfied...
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