Upper Tribunal (Immigration and asylum chamber), 2018-03-07, IA/01796/2016
| Jurisdiction | UK Non-devolved |
| Date | 07 March 2018 |
| Published date | 23 March 2018 |
| Hearing Date | 05 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/01796/2016 |
Appeal Number: IA/01796/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01796/2016
THE IMMIGRATION ACTS
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Heard at Liverpool County Court |
Decision & Reasons Promulgated |
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On 5 March 2018 |
On 7 March 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN
Between
Mr MUHAMMAD SHAHID NADEEM
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Parkin, Counsel, instructed by Rayan Adams Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer
DECISION AND REASONS
1 This is an appeal brought by the Appellant against the decision of the Judge of the First‑tier Tribunal Frankish dated 12.6.17. The Appellant, a citizen of Pakistan had appealed against the decision of the Respondent dated 6.4.16, refusing to vary the Appellant’s leave to enter or remain and making a decision to remove. The Appellant had on 7.10.14 made an application for indefinite leave to remain as a Tier 1 General migrant under para 245CD of the Immigration Rules, relying upon five years past residence in the United Kingdom under the points‑based scheme.
2 As the decision was made on or after 6.4.15 to refuse an application to vary leave to enter or remain made before 2.3.15 and where the person was seeking leave to remain as a Tier 1 Migrant, Article 9 (1)(b) of the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (as amended by The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015) results in the ‘saved’ appeal provisions continuing to apply to the present appeal, including the availability of a ground of appeal that the decision was not in accordance with immigration rules. Although I had expressed a view at the hearing before me that the notice of immigration decision, referring as it does to such ‘old’ rights of appeal, may have been in incorrect form for a decision taken on 6.4.16, it would appear, considering the terms of the abovementioned Commencement Orders, that in fact the appeal did stand to be allowed or dismissed on the basis of whether Appellant met the requirements of immigration rules, rather than, as for post 2014 Act appeals, merely whether the decision was unlawful under s.6 Human Rights Act 1998.
3 It is also to be noted that the notice of decision contained a requirement under s.120 NIAA that the Appellant provide a statement of any additional grounds on which he claimed a right to reside in the UK.
4 In the separate reasons for refusal letter also dated 6.4.16, the Respondent refused the application for indefinite leave to remain on the following grounds:
(i) in an earlier application for leave to remain, made on 14.9.09, the Appellant had made false representations as regards his level of income (the Respondent having conducted enquiries with HMRC about the Appellant’s declared level of income in the years 2008 to 2015), and the Respondent finding that there were therefore general grounds for refusing the Appellant’s application for leave to remain under paragraph 322 (2) in Part 9 of the Immigration Rules, and the application also therefore falling to be refused under paragraph 245CD(b), which requires that the application must not fall for refusal under general grounds for refusal; and
(ii) that the Appellant had failed to provide documents specified in para 245CD – SD of the rules in respect of his absences from the UK during the five‑year period prior to the date of application.
5 The Appellant appealed to the First tier. When the matter came before the Judge, Ms Rutherford, Counsel for the Appellant provided in her skeleton argument a statement of additional grounds in response to the section 120 notice, asserting that the Appellant also met the requirements for indefinite leave to remain on grounds of long residence under paragraph 276B of the Immigration Rules, on the grounds that he had 10 years continuous lawful residence in the UK, although the Judge noted that 276B also contained a requirement at (iii) that an applicant does not fall for refusal under the general grounds for refusal (eg 322(2)).
6 The Appellant’s case before the Judge was that, in relation to the discrepancies between his self employed income in 2009/10, this arose from the dishonest actions of a former accountant; the Appellant had since submitted an amended tax return for that year declaring a higher income than in the original return. In relation to the specified evidence issue, the Appellant submitted that he had in fact provided the relevant specified evidence.
7 In his decision, the Judge held at [15] that there was no merit in the Respondent’s second ground for refusing the application relating to lack of specified documents.
8 In relation to the first ground, the Judge considered the Appellant’s explanation for the discrepancies in his declared income at [17] onwards. The Judge made certain observations regarding the perceived plausibility of the Appellant’s explanations in the last four lines of [20], and in a number of factors which the Judge described as ‘side issues’ at [22].
9 In the last 2 lines of [22], the Judge states ‘The key problem, however, is that I simply do not believe that the Appellant had a genuine business’.
10 The Judge sets out at [23] that the Appellant was cross examined about which tax returns he had seen or not seen, and the Judge held that ‘As a businessman, I find it totally implausible that the Appellant would have failed to keep a copy of the return he had approved, if only to compare when he came to file a return in the following year.’
11 The Judge then sets out at [24] that the Appellant was asked to clarify the nature of his business. The questions posed to the Appellant, and his responses, are recorded at [24] to [29].
12 At [30], the Judge finds:
“30 For his original applications, the Appellant relied upon income from consultancy services including the year ending 5.4.10. For his current application, he relies upon amended figures for that income from consultancy services. My conclusion concerning his evidence in relation to his work as an educational and immigration consultant is that it is a masterclass in flannel. What he has to say about the services he was providing is complete and utter rubbish. There was no pyramid, as the appellant describes, with Trading 4 Help at the top acting as an educational and immigration consultant paying the Appellant as an educational and immigration consultant to train others as educational and immigration consultants and meeting the Appellant’s invoices thereto for “Marketing Services” in respect of some 25 individuals per invoice who, as stated, also said to be training as educational and immigration consultants.
31 Having concluded that the Appellant relies upon a sham business, I conclude that the objection under 322 is made out and the Appellant fails to qualify under 245 CD.
32 Miss Rutherford says that it is irrelevant whether the Appellant fails under 245 CD because he is entitled to qualify under 276B. I disagree. Having failed under 245 CD via 322 for false information, he also fails under 276B(iii). It was confirmed that no particular personal relationships are relied upon. That being so, there are no exceptional circumstances to justify consideration of article 8 outside of the rules.’
13 The appeal was dismissed.
14 In grounds of appeal dated 26.6.17, the Appellant avers that the Judge materially erred in law in his decision by proceeding unfairly, the Appellant’s credibility being assailed in the determination in circumstances where no credibility issues were raised in the Home Office refusal; he had no opportunity to gather evidence, or indeed his thoughts, demonstrating that his business was credible; his Counsel had no opportunity to consider the position as regards credibility or to take instructions; the Judge proceeded in breach of guidelines in MNM (Surendran guidelines for adjudicators) Kenya [2000] UKIAT 00005 and ST (child asylum seekers) Sri Lanka [2013] UKUT 00292 (IAC). Further, the Appellant asserts that the tribunal appeared to take into account speculation as to the likely results of online research denied to it as a result of AM (fair hearing) Sudan [2015] UK UT00656. If undertaking research outside the context of the evidence before the parties was impermissibly unfair, reliance on speculation as to the likely results of that research was grossly unfair.
15 Permission to appeal was granted by the First‑tier Tribunal Nightingale on a 13.12.17 on the basis that the grounds of appeal were arguable, and additionally, given that the Respondent relied upon one of the general grounds for refusal, it was arguable that the Judge also fell into error at paragraph 1 of his decision in directing...
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