Upper Tribunal (Immigration and asylum chamber), 2015-03-26, OA/21452/2013
| Jurisdiction | UK Non-devolved |
| Date | 26 March 2015 |
| Published date | 16 May 2017 |
| Hearing Date | 13 March 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/21452/2013 |
Appeal Number: OA/21452/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/21452/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 March 2015 |
On 26 March 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE ZUCKER
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
DT
Respondent
Representation:
For the Appellant: Ms E Savage, Senior Home Office Presenting Officer
For the Respondent: Ms J Kyakwita, of Hounslow Legal Service
DECISION AND REASONS
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Ms T is a citizen of Zimbabwe whose date of birth is recorded as [ ] 1997. She made application for entry clearance in order that she might join her parents in the United Kingdom having regard to Section EC-C of Appendix FM to the Immigration Rules. On 28 October 2013 a decision was made to refuse that application which decision was maintained on review by the Entry Clearance Manager on 7 February 2014.
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Ms T appealed and on 6 October 2014 her appeal was heard by Judge of the First-tier Tribunal Owens.
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The basis upon which the Secretary of State refused the application was that both of Ms T’s parents held only discretionary leave in the United Kingdom and therefore did not meet the requirements of Paragraph E-ECC.1.6 which provides:-
“One of the Applicant’s parents must be in the UK with limited leave to enter or remain, or be applying, or have applied, for entry clearance as a partner or a parent under this appendix (referred to in the section as the “Applicant’s Parent”) and
a) The Applicant’s parent’ partner under Appendix FM is also a parent of the Applicant: or
b) The Applicant’s parent has had and continues to have sole responsibility for the child’s upbringing; or
c) There are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.”
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Judge Owens gave weight to the fact that both Sponsors had been issued with residence permits which he said, stated they had: “Limited leave to remain in the United Kingdom.” In fact the residence permits did not say that at all but simply say “Leave to remain in the United Kingdom”. At my invitation both cards were produced and shown to me in the light of what Judge Owens had said at paragraphs 23 of his Statement of Reasons. Judge Owens looked to the policy guidance and found notwithstanding the documentary evidence to the contrary that Ms T’s parents had in fact been granted limited leave to remain.
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Not content with the decision allowing the appeal, by notice dated 20 November 2014 the Secretary of State made application for permission to appeal to the Upper Tribunal. The Secretary of State submitted that Ms T’s parents had been granted discretionary leave pursuant to Paragraph 353B. The Secretary of State further challenged the weight given by the judge to what was said on the permits. Additionally the Secretary of State took issue with the judge’s finding that the parents had sole responsibility but a condition precedent to that, under the rules would be in any event that one of Ms T’s parents had to have limited leave.
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On 9 January 2015 Judge Holmes granted permission. Thus the matter comes before me.
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Ms Kyakwita took me through the chronology. She drew my attention to there having been a history of refugee status having been claimed with various proceedings following but with appeal rights having become exhausted on 6 May 2010. There were further submissions lodged in August 2010 and September 2011. In each case those submissions seeking still refugee status were rejected. The 2010 submissions were met with a refusal dated 11 March 2011 in which it was said that no leave would be granted. The further submissions of 6 September 2011 were met with a letter dated 24 January 2013 stating “… However a decision has been taken that it would be appropriate, because of the particular circumstances of your case, to grant you leave to remain in the United Kingdom on a discretionary basis outside the Immigration Rules for a specified period.”
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Ms Savage pointed out that that discretionary leave had been granted under Paragraph 353B. Ms Kyakwita conceded that it was open to the Secretary of State to grant discretionary leave rather than any limited leave if she chose to do so and it was clear in my judgment on the face of the papers that that is what had happened. The observation of the judge below that limited leave was evidenced by the residence permits was patently wrong. The residence cards said no such thing.
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There is clear authority that an appeal cannot be brought in respect of a decision under 353B before the Tribunal: Khanum and Others (Paragraph 353B) [2013] UKUT 00311 (IAC). Whether the Sponsors had remedy elsewhere was a matter in respect of which I was not concerned but it seems to me that there is no basis whatsoever for a finding that the Sponsors had any leave other than that which was granted to them. If, the judge was for saying that the decision against which the appeal was brought was not in accordance with the law then the proper basis upon which the appeal should have been allowed was pursuant to Section 86(3) of the Nationality, Immigration and Asylum Act 2002. That is not how the matter was put before me. In any event for the reasons that I have stated, it is clear that the judge simply erred and his decision was infected in my judgment from wrongly reading the residence permits.
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The judge further erred by considering the policy guidance in relation to decisions to grant leave on Article 8 on or after 9 July 2012. What Judge Owens appears to have failed to recognise was that the leave was not granted because of Article 8 but because the Secretary of State in the exercise of her discretion decided to grant discretionary leave pursuant to Paragraph 353B of the Immigration Rules. A grant of leave under Paragraph 353B is entirely discretionary and indeed so much so that a decision not to grant leave pursuant to that paragraph is, as I have already observed not justiciable: Khanum. If therefore Ms T’s parents considered the status that had been granted to them in the discretion of the Secretary of State was wrong then it was not for this Tribunal to deal with the matter. It may be, and I make no observations as to whether such application would have been met with success, that it was open to Ms T’s parents to seek a remedy in another venue but that is not a matter for me. As it is the judge plainly erred and the decision is to be set aside and remade.
The Remaking
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It is well established that the material date for the purposes of remaking this decision and indeed the decision in the first instance was the date of the decision itself and not the date of the hearing either before the First-tier Tribunal or before me as to which see AS Somalia [2009] UKHL 32. It is for Ms T to demonstrate on balance of probabilities that her family or private life is being interfered with by the decision of the Secretary of State and it is for the Secretary of State to demonstrate, again to the civil standard that any interference is justified. Whether one takes as the guiding principles, that line of cases including Gulshan [2013] UKUT 00640 (IAC) or R (On the application of MM) (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985, the starting point in determining where the public interest lies is to be found in the Immigration Rules themselves. I remind myself however given the guidance in the case of Dube (SS117A-117D) [2015] UKUT 90 (IAC) that I ought still to put to myself the five questions set out in the case of Razgar [2004] UKHL 27.
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I heard evidence from Ms B. She is the mother of Ms T. She adopted her witness statement of 6 October 2014. She confirms her history being that she came to the United Kingdom in 2002 as a visitor and then extended her stay as a student. Various applications were made for Ms T’s to come to the United Kingdom and these were concurrent, it would seem, with other applications that were made on the basis of it being said that there was a risk of persecution.
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The last time that Ms B saw Ms T was twelve years ago when Ms T was only five years of age. However, arrangements were made for Ms T to continue her schooling with various friends both through primary and secondary school. Ms T also has an aunt who has been looking after the financial aspects of matters. Money was sent to that aunt from the United Kingdom. Ms B expressed to me her concern at having two of her children here in the United Kingdom with Ms T being the only child of the family who is not in the United Kingdom. In the course of cross-examination it was put to Ms B that it was always open to her to visit Ms T in Zimbabwe but she said that currently her son was ten and studying for his...
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