Upper Tribunal (Immigration and asylum chamber), 2017-09-05, AA/09919/2014
| Jurisdiction | UK Non-devolved |
| Date | 05 September 2017 |
| Published date | 22 September 2017 |
| Hearing Date | 08 June 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/09919/2014 |
Appeal Number: AA/09919/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09919/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 8th June 2017 |
On 5th September 2017 |
|
|
|
Before
UPPER TRIBUNAL JUDGE COKER
Between
XY
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Chirico, instructed by Wilson Solicitors LLP
For the Respondent: Mr O Sanders QC, instructed by Government Legal Department
ERROR OF LAW / DETERMINATION AND REASONS
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant/parties in this determination identified as XY. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
-
The appellant was recognised as a refugee by the United Kingdom on 7 July 2011 and granted leave to remain until 7th July 2016. He left the UK in mid-2013 and was, at the time of the cancellation of his refugee status, at the time of his First-tier Tribunal appeal and now, in France. On 23rd October 2014, the respondent decided to cancel the appellant’s refugee status on the grounds that he should have been or is excluded from being a refugee in accordance with regulation 7 of The Refugee or Person in Need of International Protection (Qualification) Regulations 20061 and therefore paragraph 339A(vii)2 of the Immigration Rules applied. He had no appeal against that decision. The respondent, on the same day, decided that the appellant no longer met the requirements of the Immigration Rules under which he was granted leave to remain in the UK, that this was a material change in circumstances and therefore cancelled his leave to remain under paragraph 321A(1) of the Immigration Rules. He had an appeal against that decision. He lodged an appeal to the First-tier Tribunal.
-
There is no statutory appeal against the decision to revoke refugee status. If it is the SSHD’s view that the nature of the change of circumstances is such that leave should be cancelled, then cancellation is mandatory. A decision made under paragraph 321A(1) does not import a discretion by the SSHD whether to cancel leave to remain. The tribunal cannot take a decision on how the respondent reached her decision to revoke refugee status but rather whether the decision by the SSHD to cancel leave was correct. If the judgment of the SSHD to revoke refugee status was correctly reached, there is no scope for any other outcome. Because the decision to revoke leave to remain is irrevocably linked to the decision to cancel leave to remain, the appeal against that latter decision would be meaningless if the Tribunal was not also able to consider whether the revocation of refugee status was lawful. For example, if the SSHD had unlawfully revoked refugee status, then it would follow that the decision to cancel leave to remain would itself be unlawful. This contrasts with the position where the SSHD takes a decision under paragraph 323(ii) where the SSHD has exercised a discretion whether to curtail leave to remain. A decision taken under that paragraph of the Immigration Rules does import a discretion which is justiciable by the Tribunal.
-
The appellant’s appeal was dismissed by Designated Judge of the First-tier Tribunal Shaerf for reasons set out in a decision promulgated on 4th January 2017.
-
Permission to appeal that decision was granted by Upper Tribunal Judge Allen on 12th April 2017 and the appeal came before me on 8th June 2017. At the hearing, I directed the parties to file and serve written submissions addressing whether cancellation of the appellant’s leave to remain would have been an automatic consequence of the cancellation of the appellant’s refugee status and the relevance, if any, of the fact that the appellant was outside the UK when the respondent took her decision, when his appeal was heard by the First-tier Tribunal and when his original 5-year period of leave was due to expire3.
-
The appellant relies upon Paragraph 339B4 and 339Q5 Immigration Rules and refers to the Secretary of State’s discretion to curtail or revoke leave to remain. He submits that the curtailment of leave does not automatically follow from the cancellation of refugee status.
-
The respondent accepts that basic analysis but emphasises that the appellant’s leave was cancelled under paragraph 321A(1)6; the change in circumstances namely the cancellation of refugee status, causing the mandatory cancellation of leave.
-
Although at first blush these may seem to be contradictory propositions they are not. The scheme of the Rules is such that sufficiently reprehensible behaviour on the part of an individual brings that person within the mandatory cancellation provisions of the Immigration Rules. So, if a person’s refugee status is cancelled because of some unacceptable behaviour on their part, it is perfectly rational for the Secretary of State to curtail or cancel existing leave to remain under the mandatory provisions because of the material change in circumstances. If on the other hand, a person’s refugee status is cancelled because of, say, a change in conditions in their country of origin such that they no longer need international protection and do not meet the requirements of the Immigration Rules, such change has not been brought about by any behaviour on the part of the individual; it is eminently reasonable for the Secretary of State to exercise her discretion to cancel leave to remain under paragraph 323 Immigration Rules (or indeed enable the individual to remain in the UK for the balance of their leave and possibly beyond). This analysis is also congruent with the approach of the First-tier Tribunal judge and the parties, that the cancellation of refugee status was inextricably linked to the cancellation of leave to remain – if the cancellation of refugee status was contrary to the Immigration Rules, then it would follow that the appeal against the decision to cancel leave to remain would be successful.
-
In so far as the relevance of the appellant being outside the UK is concerned, the submissions by Mr Chirico in his first written note are not relied upon by him and he has apologised for incorrectly asserting that which was not the case. He does however submit that if the appellant now sought to re-enter the UK it would be potentially relevant if he could demonstrate that his previous leave had been cancelled as a result of a decision which was not in accordance with the law because this would have relevance to the exercise of discretion by an Entry Clearance Officer. But if the appellant succeeds in his appeal against the curtailment of his leave (and thus the cancellation of his refugee status), on whatever ground, it is self-evident that this would have relevance to the exercise of any discretion by an Entry Clearance Officer. An Entry Clearance Officer will, on taking a decision, consider all relevant matters.
-
I am satisfied having had regard to the submissions advanced by both parties that, in the light of the decision by the respondent to revoke refugee status, the decision to cancel the appellant’s leave under paragraph 321A(1) was rationally and lawfully open to her. But, as explained above, for any appeal to be meaningful the Tribunal is required to consider the lawfulness of the decision to revoke refugee status.
-
I am satisfied also, having considered the submissions made, that the appellant’s leave to remain in the UK was not extended pending the determination of his appeal. In so far as any future application for variation is concerned, the appellant has been at liberty to apply for entry to the UK at any time since he left the UK and his leave was cancelled or after it would in any event have expired.
Error of law
-
The respondent, for reasons set out in two decision letters dated 23rd October 2014 and 10th March 2015, concluded there were “serious reasons for considering the appellant had committed a serious non-political crime outside the UK prior to being recognised as a...
To continue reading
Request your trial