Patel (consideration of Sapkota - unfairness) India
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 29 November 2011 |
| Neutral Citation | [2011] UKUT 484 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 November 2011 |
[2011] UKUT 484 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
UPPER TRIBUNAL JUDGE Perkins
For the Appellant: Mr Z Malik, instructed by Malik Law Chambers
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer
Patel (consideration of Sapkota — unfairness) India
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(1) There is no substantive segregation of considerations going to an extension of stay and removal where the appellant seeks leave to remain outside the rules on 395C factors and these are considered on their merits with the consequence that the respondent states removal will follow even if powers under s 47 of the Immigration, Nationality and Asylum Act 2006 are not formally used when the decision is made to refuse to vary leave to remain.
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(2) The decision in Sapkota [2011] EWCA Civ 1320 is based on a public law duty to exercise s.47 powers where fairness requires it, having regard to the factors considered in Mirza [2011] EWCA Civ 159 and TE (Eritrea) [2009] EWCA Civ 174 . It does not amount to an inflexible rule that the power must always be exercised.
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(3) There was no unfairness where the Secretary of State and the judge considered the factors relevant to intended removal in the appeal against the decision to refuse to vary leave.
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(4) It would be irrational to afford weight as a compassionate factor to the first appellant's desire to continue to live and work in the United Kingdom when his leave had been as a working holiday-maker and he had obtained that leave by misrepresenting his true intentions.
The first appellant is an Indian national born in 1984. In July 2006 he married the second appellant. The third appellant is their child born in July 2010 in the United Kingdom.
This an appeal against a decision of the First-tier Tribunal given on 13 July 2011 dismissing the appeal of each of the appellants against a refusal of extension of leave to remain on an application for leave made outside the rules and on the basis of human rights.
In 2007 the first appellant applied for entry clearance as a working holiday-maker and the second appellant applied for one as his dependant. The application was refused in May 2008. They appealed. The Judge who heard the appeal was impressed by the testimony of the appellants' sponsor who was settled in the United Kingdom. Despite the doubts expressed by the Entry Clearance Officer, the judge was satisfied that the appellant genuinely intended entry for a working holiday and intended to return to India at the conclusion of the visit.
In March 2009 the first two appellants entered the United Kingdom with a two year visa as working holiday-makers. On 26 February 2011, they applied for leave to remain on the basis of exceptional circumstances outside the Immigration Rules.
The application was supported by a statement made by the first appellant noting the birth of their son in July 2010 and making the following points:
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(i) The United Kingdom was his only home and he had no connection whatsoever with India.
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(ii) He asked for leave to remain on compassionate grounds outside the Rules and believed he qualified for grant for leave to remain as he had been present in the United Kingdom for two years.
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(iii) Since arrival in the United Kingdom the appellants had established a private life here and rooted themselves here and consider it to be their only home. They have eroded all ties with their country of origin.
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(iv) The appellants have integrated into British culture having lived in the United Kingdom for such a prolonged period.
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(v) Article 8 of the ECHR provides a concession to such individuals who have their private and family life established in the United Kingdom and the appellant and his family deserve to be granted permanent immigration status as they fall within the criteria of Article 8.
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(vi) The first appellant and his family are law-abiding, self-sufficient and not a burden on the State. It would cause them problems if their life were to be interrupted as they have a significant network of friends in the United Kingdom.
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(vii) When he came to the United Kingdom the first appellant severed all connections with India, a poor country. He has no job or home there in India and cannot go back.
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(viii) Each of the factors set out under paragraph 395C of the Immigration Rules HC 395 should be taken into account.
This application was refused in May 2011 and detailed reasons for refusal were given in a letter written earlier dated 30 March 2011. This is a lengthy letter setting out the case law on Article 8 and the author's conclusions that nothing had been put forward in the application to justify exceptional leave to remain. It is sufficient here to note that the decision letter:-
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i. stated that it was intended to remove the appellants to India at the conclusion of the appeal;
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ii. took account of all the factors relied on by the first appellant in his witness statement and representations made and the discretionary factors to be considered in removal cases under paragraph 395 of the Immigration Rules;
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iii. recognised that the best interests of the third appellant child and the duty to promote the welfare of the child under s.55 of the Borders, Citizenship and Immigration Act 2009 were expressly addressed.
Although the decision letter stated that the Secretary of State intended to remove all of the appellants in the event that they did not make a voluntary departure upon the conclusion of their variation of leave appeal, the immigration decision giving rise to the appeal was a refusal to vary leave and not a decision to remove.
There was an appeal against this refusal to Judge Brown on 11 July 2011. The first appellant raised for the first time a claim that he would be at risk if returned to India because of alleged sexual infidelity by his wife. The Judge did not accept this evidence and made adverse findings on the credibility of the first appellant as a witness as he was entitled to for the reasons he gave.
The Judge concluded that the first appellant's intention was to migrate to the United Kingdom, by obtaining a working holiday visa. His declared intention to return to India made at the time of the application was false. Their subsequent life in the United Kingdom has been based on that false representation. He found that there was nothing to prevent a return to India; there was no interference with family life in the intended removal as the family were being removed together; removal would have no effect on the child as he would be in the care of his parents who had resources and education and would be able to look after him.
Permission to appeal to the Upper Tribunal was granted three grounds:
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(i) The Judge erred in dismissing the appeal because the respondent's decision was not in accordance with the law through a failure to give effect to a statutory duty under s. 55 of the Borders, Citizenship and Immigration Act 2009.
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(ii) The judge's decision was inconsistent with the judgement of the Court of Appeal in Mirza and others [2011] EWCA Civ 159.
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(iii) The judge erred in dismissing the appeal under Article 8.
Following the grant of permission to appeal, on 15 November 2011 the Court of Appeal in Sapkota and KA (Pakistan) [2011] EWCA Civ 1320 applying the decision in Mirza concluded that:
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(i) a failure by the Secretary of State to make a removal decision under s. 47 of the Immigration, Asylum and Nationality Act 2006 at the same time or shortly after making a decision to refuse leave to remain was or could be unlawful; and
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(ii) the Tribunal had jurisdiction to consider the legality of the Secretary of State's action by reference to the failure to make a removal decision in the course of its statutory jurisdiction under ss. 82 to 86 of the Nationality, Immigration and Asylum Act 2002.
The decision in Sapkota played an important part in Mr Malik's submissions before us. He submitted that as there was no removal decision taken in this case the Secretary of State's decision refusing leave to remain was unlawful and the First-tier Judge erred in law in failing so to decide as such.
Mr Saunders for the respondent disagreed and resisted this appeal on the basis that in this case the appellant had a right of appeal in which he was able to ventilate every issue that he raised in his grounds of appeal including the compassionate factors said to have arisen from his length of residence and connections here. The Secretary of State intended to make a removal decision and had therefore taken all factors into account that would need to be considered before making such a lawful decision.
We must first decide whether there was an error of law made by the judge below and whether if there was an error it was a material one justifying the re-making of the decision. In considering these matters we must decide whether the decision of the Secretary of State was not in accordance with the law for either of the reasons claimed in the grounds.
We understand that the grounds of appeal before us feature in a number of cases before the First-tier and Upper Tribunal. We hope our analysis of the case law may therefore be of assistance to other judges dealing with similar grounds.
The principal issue before the Court of Appeal in these combined cases was, jurisdiction. Lord Justice Aikens giving the majority judgment discussed this at [54] and [112] and concluded that an immigration decision can be impugned as not in accordance with the law pursuant to s. 84(4)(e) of the Nationality, Immigration...
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