Upper Tribunal (Immigration and asylum chamber), 2014-11-04, AA/09745/2013
| Jurisdiction | UK Non-devolved |
| Date | 04 November 2014 |
| Published date | 23 February 2015 |
| Hearing Date | 09 October 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/09745/2013 |
Appeal Number: AA/09745/2013
IAC-AH-sc-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09745/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 9 October 2014 |
On 4 October 2014 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE MCWILLIAM
Between
Gazmend Kurpali
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Hawkin, Counsel instructed by Nova Legal Services
For the Respondent: Mr T Wilding, Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a citizen of Kosova and his date of birth is 26 August 1976.
2. The appellant entered the UK illegally on 12 September 1998 and claimed asylum. This application was, according to the Secretary of State, refused in a decision of 18 July 2000 and the appellant was invited by the Secretary of State to an interview relating to his asylum claim and he failed to attend.
3. The appellant made further submissions to the Secretary of State dated 10 May 2010 enclosing a legacy questionnaire. He made additional submissions on 30 May 2013. The conclusion of the Secretary of State was that the submissions did not amount to a fresh claim in a letter of 15 October 2013. The respondent went on in the decision letter to refuse the appellant’s application for asylum and humanitarian protection for the reasons which it gave in the original refusal letter of 18 July 2000 (which according to the respondent was served on the appellant by post on 7 May 2001). The Secretary of State considered the appellant’s private life in the context of Appendix FM (paragraph 276ADE). The application was refused under paragraph 276ADE(iii) and (vi). The Secretary of State also considered the application in the context of family life in accordance with Appendix FM. The decision maker also considered whether there were exceptional circumstances to grant leave outside the Rules and concluded that there were not.
8. The decision maker also considered paragraph 353B of the Immigration Rules and decided that although the appellant did not have any criminal convictions he had failed to attend an asylum interview on 11 July 2000 and he absconded. Attempts to locate him were unsuccessful and the appellant only came to light when his representatives responded to a letter from the Home Office on 26 July 2010. It was not accepted by the decision maker that the appellant had only received the original asylum decision of 18 July 2000 on 17 May 2013 as put forward by the appellant.
9. The decision maker took into account the appellant had been in the UK for over fourteen years however it was concluded that for twelve of those years he decided to abscond from immigration control and that he had only been complying with the immigration law since he re-established contact in July 2010.
10. The appellant appealed against the decision of the Secretary of State and his appeal was dismissed by Judge of the First-tier Tribunal Callow in a decision dated 9 May 2014 following a hearing on 6 March 2014.
11. The appellant made an application for permission to appeal which was granted by Judge of the First-tier Tribunal Brunnen in a decision of 5 June 2014. Thus the matter came before me on 8 August 2014 when I adjourned the matter until 9 October 2014 and directed both representatives to prepare written skeleton arguments.
The Decision of the First-tier Tribunal
12. Judge Callow recorded that the appeal had been listed previously on 25 November 2013 by Judge Talbot who issued directions to the respondent to produce evidence in relation to the service of the refusal letter of 18 July 2000. In addition the appellant was directed to serve an additional witness statement setting out details of his places of residence between his arrival in the UK and 2010. The respondent failed to comply with the direction.
13. At the hearing before Judge Callow the appellant’s grounds of appeal were amended to include long residence pursuant to Rule 276B of the Immigration Rules.
14. The Judge made the following findings:-
“13. While it was claimed in the grounds of appeal that the appellant was persisting with his claim for asylum, no evidence whatsoever was adduced in this regard. Equally when the appellant wrote to the respondent in 2010 he simply raised the question of being granted leave to remain under the respondent’s Legacy Programme. He did not restate his claim for asylum. He sought leave to remain under the respondent’s Legacy Programme and Article 8 of the ECHR. Furthermore no submissions were made by Mr Hawkin in support of this ground of appeal.
15. In assessing the credibility of the appellant’s evidence I am minded that he has told the truth about some matters, but not all. Nonetheless it is accepted that he was unaware of the respondent’s refusal of 18 July 2000 until 17 May 2013 when his current representatives obtained a copy of the refusal.
25. In the present appeal the appellant has been resident in the UK for over fifteen years. The tension in this appeal centres on the length of the appellant’s residence in the UK and the adverse finding of the respondent that the delay in his case was due to his own evasion of immigration control and not due to delays on the part of the respondent. He was an absconder between 1998 and 2010.
26. The respondent’s refusal letter under appeal mentioned the appellant’s long residence of fourteen years and which was considered as one of the factors under paragraph 353B. Lengthy residence is undoubtedly a weighty factor, but it is not in itself a decisive consideration. In the present appeal there was no delay by the respondent. The delay was a consequence occasioned by the appellant’s own conduct. Between 1998 and 2010, a period of twelve years, the appellant put himself beyond the reach of the respondent by failing to follow up on his asylum claim and to keep the respondent informed as to his whereabouts. He held no leave to remain in the UK. He now seeks to profit from this twelve year period.
29. A reading of the decision shows that the respondent exercised her discretion in arriving at her conclusion refusing the appellant leave to remain. On the face of it the decision is lawful. However, the issue in this appeal is whether it should have been exercised differently.
30. An overall view of the essential facts, in the round, is that the appellant elected to abscond for a period of twelve years. By his own conduct he put himself beyond the reach of the respondent. He cannot now seek to profit from the lengthy twelve year period. Had this period arisen due to delays by the respondent, then the situation would be very different. Furthermore, with no leave to remain he has worked without permission. The fact that Mr Aroun, in Geraldo, (with an immigration history comparable with that of the appellant, if not worse) was granted discretionary leave by the respondent is in no way, as with the length of the appellant’s residence, singularly conclusive. In all the circumstances it has not been shown that the respondent’s discretion should have been exercised differently. In all the circumstances, after inordinate lengthy consideration, the respondent’s decision is in accordance with the law. Accordingly the appellant’s appeal fails.”
15. The Judge went on to consider Article 8 of the ECHR in accordance with R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27. The Judge went on to make the following findings:
“34. While the appellant lives with his cousin it has not been established that there exists any family life beyond normal emotional ties. The appellant works and is financially independent. Undoubtedly he has friends living in the UK. Nonetheless the appellant has been living in the UK for over fifteen years and in respect of which it is acknowledged that this is a significant factor of weight. However his parents, with whom he is in contact, live in Kosova. As does, so it is said, his wife and his 15 year old daughter.
35. Simply founded on the length of his residence in the UK, despite it being without leave and a low threshold of engagement, it will be assumed that the appellant’s removal would ‘have consequences of gravity’ (Lord Bingham’s question 2) engaging the operation of Article 8.
36. There is no dispute that the interference is in accordance with the law (question 3) and pursues a legitimate aim (question 4).
37. The issue that arises is one of proportionality, as was explained in Huang and Anor v Secretary of State for the Home Department [2007] UKHL 11. This shows the necessity to give full and appropriate weight to the interests of society generally in adherence to clear and fixed Immigration Rules and consistent enforcement of the same in the...
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