Upper Tribunal (Immigration and asylum chamber), 2016-10-14, IA/18035/2015
| Jurisdiction | UK Non-devolved |
| Date | 14 October 2016 |
| Published date | 11 September 2018 |
| Hearing Date | 30 September 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/18035/2015 |
Appeal Number: IA/18035/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18035/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 30 September 2016 |
On 14 October 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AKHTAR ALI CHUGHTAI
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr A Miah (counsel) instructed by Lee Valley, Solicitors
DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Frazer, promulgated on 14 March 2016 which allowed the Appellant’s appeal.
Background
3. The Appellant was born on 7 March 1960 and is a national of Pakistan. The appellant entered the UK on 21 January 2000 and claimed asylum on arrival. On 19 December 2000 that application was refused he appealed the decision to refuse asylum and his appeal was dismissed and 29 May 2002. By 7 August 2002 his appeal rights were exhausted.
2. On 24 January 2012 the appellant applied for indefinite leave to remain in the UK on compassionate grounds. He argued that because he suffers from depression and anxiety he is not medically fit to leave the UK, and argued that articles 2, 3 & 8 ECHR are engaged.
4. On 26 March 2014 the appellant’s solicitors wrote to the respondent to remind her that the appellant’s application was outstanding despite the passage of time. The appellant’s solicitor reminded the respondent that by March 2014 the appellant had completed 14 years residence in the UK and his application has been submitted before 9 July 2012.
5. On 29 April 2015 the Secretary of State refused the Appellant’s application.
The Judge’s Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Frazer (“the Judge”) allowed the appeal against the Respondent’s decision.
7. Grounds of appeal were lodged and, on 12 August 2016, Judge Hollingworth gave permission to appeal stating inter alia
“2. An error of law has arisen in relation to the Judge finding that the decision of the respondent was not in accordance with the law but, has nevertheless proceeded to allow the appeal outright on human rights grounds which appear to be confined to the immigration rules as stated under paragraph 26 of the decision without the matter having been sent back to the respondent.
3. It is arguable that if the Judge was allowing the appeal on human rights grounds and that section 117 should have been applied.”
The Hearing
8. For the respondent, Mr Melvin moved the grounds of appeal. He relied on written submission which he handed up, and told me that this case is on all fours with the case of Singh v SSHD [2015] EWCA Civ 74. He told me that the Judge’s decision is tainted by a material error of law and that the Judge should not have allowed this appeal by considering section 276B of the immigration rules, but instead should consider this case under paragraph 276 ADE of the rules which, on the facts as the Judge found them to be, the appellant cannot meet.
(b) Mr Melvin told me that HC 194 came into force on 9 July 2012, but that the implementation provision contained therein was altered by HC 565 which came into effect from 6 September 2012. That introduced paragraph A277C to the immigration rules which enables the Secretary of State to consider outstanding applications made before 9 July 2012 for leave to remain in the UK against the provisions of appendix FM and paragraph 276 ADE to 276 DH.
(c) Mr Melvin told me that the Judge’s decision is tainted by a material error of law. He urged me to set the decision aside and to substitute my own decision.
9. (a) For the appellant, Mr Miah told me that the decision does not contain any errors, material or otherwise. He told me that consideration of paragraph 276 ADE of the rules is entirely irrelevant. He took me to [16] of the decision where the Judge correctly states that the application was made in January 2012 & the respondent’s decision was made in April 2015. He told me that there the Judge correctly directs himself to consider the immigration rules before the changes which introduced paragraph 276 ADE in July 2012.
(b) Mr Miah then took me to [17] of the Judge’s decision where, he told me, the Judge correctly considered the law and the respondent’s own policy guidance. He reminded me that at [14] the Judge carefully balanced all section 117B considerations. He told me that the Judge’s decision is correct in law and should be allowed to stand. He urged me to dismiss the respondent’s appeal.
ANALYSIS
10. In Edgehill and another v Secretary of State for the Home Department [2014] EWCA Civ 402, in determining appeals against refusals to grant the appellants ILR it was held that, subject to one caveat, it was not lawful to reject an application, made before 9 July 2012 under Article 8 of the Convention, in reliance upon the applicant's failure to achieve 20 years' residence as specified in paragraph 276ADE(iii) of the new Immigration Rules as introduced by the Statement of Changes in Immigration Rules which came into effect on 9 July 2012. The caveat was that
“… mere passing reference to the 20 years requirement in the new rules will not have the effect of invalidating the Secretary of State's decision. The decision only becomes unlawful if the decision maker relies upon rule 276ADE (iii) as a consideration materially affecting the decision.”
11. In Singh v SSHD: Khalid v SSHD [2015] EWCA Civ 74, it was held that the ratio in Edgehill only applied to applications made before 9 July 2012 and decided before 6 September 2012 (i) When HC 194 first came into force on 9 July 2012, the SSHD was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para. 7 above displaces the usual Odelola principle; (ii) But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the SSHD was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken on pre 9 July 2012 applications in the two-month window between 9 July and 6 September 2012; (iii) Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the new Rules in reaching those decisions. determined on or after 6 September 2012 were governed by the Rules as amended by HC 194 and HC 565.
12. Singh settles the difficulties that had arisen in trying to reconcile Edgehill and Haleemudeen v SSHD [2014] EWCA Civ 558) In KI (Nigeria) v SSHD [2015] EWCA Civ 255, following Singh v SSHD [2015] EWCA Civ74, when considering an application for indefinite leave to remain in the UK in March 2013 which had been originally made in May 2004, the Secretary of State had been right to consider the application by reference to the Immigration Rules as amended with effect from 6 September 2012 rather than in accordance with the Rules as they stood before 9 July 2012. The position was also confirmed in R(on the application of Rajibul Islam) [2015] EWCA Civ 312. In R (on the application of Taylor and Owusu-Akyeaw) [2015] EWHC 3526 (Admin) it was held that the Court was bound by the reasoning in Singh [2015] EWCA Civ 74 to conclude that the Secretary of State had been entitled to take into account the provisions of Appendix FM of the Immigration Rules in deciding two applications for leave to remain under Article 8 of the ECHR which had been made prior to the implementation of Appendix FM on 9 July 2012.
13. There is therefore merit in Mr Melvin’s submission. The Judge correctly records in the first sentence of [16] of his decision that this application for leave to remain was submitted on 24 January 2012 & the respondent’s decision was not made until 29 April 2015. HC 565 came into effect from 6 September 2012. If the decision in this case had been made between 9 July 2012 and 6 September 2012, then the Judge’s decision would be correct in law....
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