Shahzad (Art 8: Legitimate Aim) [Asylum and Immigration Tribunal]

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeStorey,Pitt,Pitt UTJ,Storey UTJ
Judgment Date26 February 2014
Neutral Citation[2014] UKUT 85 (IAC)
Date26 February 2014

[2014] UKUT 85 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Upper Tribunal Judge Storey

Upper Tribunal Judge Pitt

Between
The Secretary of State for the Home Department
Appellant
and
Atif Shahzad
Respondent
Representation:

For the Appellant: Mr P Deller, Senior Home Office Presenting Officer

For the Respondent: Mr S Kumar, Legal Representative, Capital Solicitors

Shahzad (Art 8: legitimate aim)

(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.

(ii) “Maintenance of effective immigration control” whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of “prevention of disorder or crime” or an aspect of “economic well-being of the country” or both.

(iii) “[P]revention of disorder or crime” is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.

(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.

(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;

(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]–[31] in particular) and Gulshan (Article 8 — new Rules — correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.

DETERMINATION AND REASONS
1

In Article 8 immigration cases is “prevention of disorder and crime” only a “legitimate aim” under Article 8(2) where there is criminal conduct involved? Is it open to a judge in an immigration case in which there is no criminal conduct involved to consider that the only or primary legitimate aim being pursued by the SSHD is “economic well-being”? In either type of case is it incumbent on the Secretary of State to have identified in her decision what legitimate aim she considers that decision to pursue? Given that there exists nearly 60 years of Strasbourg jurisprudence on Article 8, one would have thought these questions would have received definitive answers long ago, but alas not. That anyway is how we see things and is why as well we seek in this decision to provide clarification. As we shall see the particular circumstances of the case have led us to consider each of these questions and several related ones.

2

This is an appeal brought by the appellant (hereafter the Secretary of State for the Home Department abbreviated as SSHD) against a determination of First-tier Tribunal Judge Hindson who on 28 August 2013 dismissed the respondent's (hereafter claimant's) appeal under the Immigration Rules but allowed it on Article 8 grounds.

The claimant's antecedent immigration history
3

The claimant is a citizen of Pakistan who on 6 May 2008 had been granted leave to remain as a student until 1 January 2010. Prior to expiry of his leave — on 22 September 2009 to be exact — he applied for further leave to remain in the same capacity, but this was refused. He appealed and his case came before First-tier Tribunal Judge Eban. On 14 September 2009 she allowed his appeal under the Immigration Rules. Noting that the only reason the SSHD gave for refusing his application was the fact that his uncle the sponsor was not a parent, the judge decided to allow his appeal. Her reasoning was that at the relevant time the requirement for funds to be provided by a parent or legal guardian was only contained in Policy Guidance, not in the Immigration Rules. Applying the guidance set out in Pankina [2010] EWCA Civ 719 the judge concluded that the claimant's appeal should be allowed because his sponsoring uncle had shown he was (i) in loco parentis; and (ii) both willing and able to provide the requisite funds for maintenance.

4

In response, on 15 December 2010, the SSHD granted him further leave to remain until 29 February 2012. Before the end of 2010 he had obtained an MBA from the College of Technology London. On 28 February 2012, he applied for further leave to do a Diploma in Information Technology at Lincoln College, London (London International College of Management). On 19 July 2012 the SSHD wrote to him explaining that as she had made a decision to revoke the licence of the London International College of Management and in line with her own Rules and guidance, she would give him 60 days to find a new Tier 4 educational sponsor. On 14 September 2012 the claimant made a renewed application for leave to remain as a Tier 4 (General) Student Migrant under the Points Based System (PBS) to pursue a Level 7 Diploma in Tourism and Hospitality Management. When this subsequent application was refused on 4 March 2013, he appealed to Judge Hindson whose determination is the subject of this appeal brought by the SSHD.

5

In the grounds of appeal before Judge Hindson, it was argued first of all that the claimant's current position was on all fours with that which existed at the time of the previous appeal and there was no reason to go behind the findings of Judge Eban; secondly, that the SSHD should have exercised “evidential flexibility” when faced with the evidence produced showing financial support from the uncle and should have requested further evidence from the claimant.

6

Judge Hindson swiftly disposed of the “evidential flexibility” ground, correctly pointing out that there was no evidence that the uncle had become the claimant's legal guardian and so “there would therefore have been no point in the decision-maker seeking further evidence, since no such evidence exists”. Neither party takes issue with this finding.

7

As regards the second ground, Judge Hindson was equally concise. He pointed out that, contrary to what had been argued on behalf of the claimant, his position was not on all fours with that existing before Judge Eban. Judge Hindson wrote:

“The requirement that private financial support be from a parent or legal guardian is now enshrined within the Rules, not in guidance. It is therefore a mandatory requirement. The claimant accepts that there is no such legal relationship between him and his uncle and therefore the appeal must be dismissed under the Rules”.

Again, neither party takes issue with this finding. The new provision to which Judge Hindson refers had come into force on 4 July 2011.

8

The judge decided nonetheless to allow the appeal on the basis of Article 8 in the following terms:–

  • “22. The appellant has been in the UK as a student since 2008 and there is no suggestion that he has ever been in breach of requirements of the student visa. He has paid the fees for his current course in full and they are not refundable. I accept that adequate funding is available from his uncle. I accept that the appellant could have arranged the transfer of those funds into his mother's account, or to his own account, prior to making this application, in which case he would have had no difficulty. He did not do so because he did not believe it was necessary. He was advised by his college that this was not necessary. He previously succeeded on appeal on the same issue; I have no doubt that he was unaware of the change in the rules. The consequence of the response [sic] decision is that the appellant would have to return to Pakistan and make a fresh application for entry clearance as a student. This would have financial implications for him and he would almost certainly miss one academic year of study.

  • 23. I find that the consequence of the response [sic] decision is of sufficient gravity as to potentially engage Article 8 (private life). I accept that the interference is in accordance with the law and that it has the legitimate aim of securing the economic well-being of the UK by sensible immigration control. I am not satisfied that the interference is proportionate to that aim. I have already described the consequences to the appellant, and they are substantial. There is no suggestion that the appellant's presence in the UK will have an adverse effect on the country's economic well-being. Indeed he is bringing substantial funds into the country to pay his course fees and to meet the costs of his maintenance and accommodation.”

The SSHD's Grounds of Appeal
9

By way of challenge two grounds were raised by the SSHD. In ground 1 it is averred that the judge failed to have regard to the immigration rules in making his Article 8 assessment. In ground 2 it is argued that the judge had in effect applied a ‘Near-Miss’ principle contrary to what was decided by the Court of Appeal in Miah [2012] EWCA Civ 261, in which Burnton LJ at [26] stated:

“In my judgment, there is no Near-Miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the Tribunal, must assess the strength of an Article 8 claim, but the requirements of immigration control is not weakened by the degree of non-compliance with the Immigration Rules.”

10

The SSHD sought additional support for ground 2 from Tribunal case law dealing with claims for private life based on studies, in particular MM (Zimbabwe) [2009] UKAIT 00037 which highlighted the point that “a student here on a temporary basis has no expectation of a right to remain in...

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