Upper Tribunal (Immigration and asylum chamber), 2015-06-19, [2015] UKUT 412 (IAC) (Forman (ss 117A-C considerations))
| Jurisdiction | UK Non-devolved |
| Judge | The President, The Hon. Mr Justice McCloskey, Upper Tribunal Judge Macleman |
| Status | Reported |
| Date | 19 June 2015 |
| Published date | 27 July 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 28 May 2015 |
| Subject Matter | ss 117A-C considerations |
| Appeal Number | [2015] UKUT 412 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC)
THE IMMIGRATION ACTS
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Heard at Eagle Building, Glasgow |
Determination Promulgated |
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On 28 May 2015 |
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………………………………… |
Before
The President, The Hon. Mr Justice McCloskey
Upper Tribunal Judge Macleman
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
STEVEN RICHARD FORMAN
Respondent
Representation:
Appellant: Mr J Komorowski (Advocate), instructed by the Advocate General
Respondent: Mr Devlin (Advocate), instructed by Latta and Co Solicitors
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The public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified.
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The list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question.
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In cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.
DECISION AND DIRECTIONS
INTRODUCTION
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This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “Secretary of State”), dated 25 September 2014, refusing the application of the Respondent (the original Appellant), a citizen of the United States of America aged 69 years, for a variation of his leave to remain in the United Kingdom. The Respondent appealed successfully to the First-tier Tribunal (the “FtT”). The Secretary of State now appeals with permission to this Tribunal.
THE IMPUGNED DECISION
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On 26 July 2012, the Secretary of State granted the Respondent leave to remain in the United Kingdom as a Tier 1 (Highly Skilled) Post-Study Migrant for a period of two years, to expire on 26 July 2014. On 22 July 2014 the Respondent applied for a variation of his leave to remain. He based his application on his right to respect for private life under Article 8 ECHR. The ensuing decision of the Secretary of State has two elements. First, the application was considered under paragraph 276ADE of the Immigration Rules, yielding the conclusion that the Respondent did not satisfy any of the requirements enshrined therein. One interposes here the observation that this gives rise to no controversy between the parties. The second element of the impugned decision is expressed in these terms:
“Decision on Exceptional Circumstances
It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 [ECHR], might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that it does not.”
Therein lies the genesis of this appeal.
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In order to comprehend the context, it is essential to outline some of the features of the Respondent’s application to the Secretary of State. Dr Forman is a professional musician whose specialism lies in percussion. This is the career which he has pursued in the United States, where he worked mainly as a recording musician in the entertainment business. He has worked with some of the biggest names in the world of musical entertainment. As his career progressed he began to focus on composition, education and teaching. His activities include research in musical therapy, specifically in the realm of Parkinson’s Disease. He has developed a particular affinity with the musical culture of Scotland, illustrated inter alia in his compositions, certain performances and his doctoral studies in this country. He secured his doctorate in 2012. This was the immediate impetus for the two years post-study work visa granted to him in July 2014. He has spent the last seven years of his life in Scotland. His most recent employer here has been the Royal Conservatoire of Scotland (“RSC”).
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The nature, quality and quantity of the support for Dr Forman’s application to the Secretary of State can only attract a mixture of admiration and envy. His application was supported by written testimonials from a total of 63 friends, professional and academic colleagues, studies and supporters. Dr Forman is clearly a rather special person.
DECISION OF THE FtT
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Turning one’s attention to the decision of the FtT, another of the stand out features of this appeal emerges. This decision is obviously the product of careful reflection and consideration on the part of Designated Judge MacDonald. It is, moreover, carefully and clearly structured. Furthermore, it was produced with commendable expedition.
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If this were a merits appeal, there could only be one outcome, bearing in mind the various considerations and observations rehearsed in [3] – [5] above: Dr Forman would be a resounding winner. However, we have a significantly different duty and task, namely that of deciding whether the decision of the FtT is undermined by material error of law. We shall revisit certain aspects of the decision presently.
THE ISSUES
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Permission to appeal was granted on the following basis. It was considered arguable that the Judge had erred in his approach to Article 8 ECHR by attaching no weight to the Respondent’s failure to satisfy the requirements of the Immigration Rules. Continuing, the permission Judge observed that the FtT may have approached the appeal from the perspective that the Appellant is an asset to United Kingdom society, rather than that of whether removal would be a disproportionate breach of his right to respect for private life.
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On behalf of the Secretary of State, Mr Komorowski helpfully reduced his argument to the following five core submissions:
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The FtT failed to have regard to the full terms of and policy underlying paragraph 276ADE of the Immigration Rules (the “Rules”).
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The FtT failed to recognise the inherently weak nature of the majority of private life claims.
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The FtT failed to consider the precarious nature of the Respondent’s private life.
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The FtT wrongly weighed the consideration of wider societal benefit as part of the Respondent’s private life.
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The FtT wrongly discounted the weight to be given to immigration control by reference to the Respondent’s self-sufficiency.
In support of these submissions, Mr Komorowski drew attention to certain passages in the determination of the FtT, highlighting in particular what he suggested was an incorrect focus on the Tier 2 regime of the Rules, rather than paragraph 276ADE, an incomplete consideration of the latter and the inadequate consideration of section 117B of the Nationality, Immigration and Asylum Act 2002.
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On behalf of the Respondent, Mr Devlin emphasised in particular the importance of considering the determination as a whole and, in this context, he placed some emphasis on that section of the decision wherein the Judge rehearses, in summary, the parties’ competing submissions. Adopting this approach, he contended that, in substance and in the round, the Judge had avoided falling into error. In support of his submissions he invoked SS (Congo) and Others v SSHD [2014] EWCA Civ 387, at [44] and [48] especially. He contended that the Judge had observed the strictures contained in the judgment of Richards LJ at [48]:
“What does matter, however – whether one is dealing with a section of the Rules which constitutes a ‘complete code’ (as in MF (Nigeria)) or with a section of the Rules which is not a ‘complete code’ (as in Nagre and the present appeals) – is to identify, for the purposes of the application of Article 8, the degree of weight to be attached to the expression of public policy in the substantive part of the Rules in the particular context in question (which will not always be the same ….), as well as the other factors relevant to the Article 8 balancing exercise in the particular case (which, again, may well vary from context to context and from case to case).”
Mr Devlin also reminded us of one of several memorable statements by Lord Bingham of Cornhill, in this instance his formulation in EB...
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