Upper Tribunal (Immigration and asylum chamber), 2014-09-12, IA/40088/2013
| Jurisdiction | UK Non-devolved |
| Date | 12 September 2014 |
| Published date | 05 January 2015 |
| Hearing Date | 05 September 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/40088/2013 |
Appeal Number: IA/40088/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40088/2013
THE IMMIGRATION ACTS
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Heard at Birmingham, Sheldon Court |
Determination Promulgated |
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On 5th September 2014 |
On 12th September 2014 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
mr abdul khalique
(anonymity order not madE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Taj Shah (Solicitor)
For the Respondent: Mr D Mills (HOPO)
DETERMINATION AND REASONS
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This is an appeal against the determination of First-tier Tribunal Judge Hawden-Beal promulgated on 4th March 2014, following a hearing at Birmingham on 17th February 2014. In the determination, the judge dismissed the appeal of Abdul Khalique. The appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
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The Appellant is a male, a citizen of Bangladesh, who was born on 20th January 1974. He appealed against the decision of the Respondent Secretary of State dated 13th September 2013 to refuse his application for leave to remain in the UK on the basis of long residence under paragraph 276B, 276ADE, Appendix FM, and Article 8 of the Human Rights Convention.
The Appellant’s Claim
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The Appellant’s claim is that he has been living in the UK continuously for fourteen years such that he qualifies to remain in this country under the long residence Rule. The Respondent contests this on the basis that he could not prove continuous residence for a period of fourteen years. He had no partner or child in the UK. He had not lived here for twenty years. He was not a minor who lived here for at least seven years. He was not aged between 18 and 25 years. Finally, that his social, family and cultural ties remained with his home country.
The Judge’s Findings
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The judge observed how the Appellant had entered the UK on a visit visa in 1994, and he had leave to remain from September 1994 until March 1995. Since then he has been here without any valid leave. The judge heard evidence that the Appellant had not returned back to Bangladesh since he came to this country in 1994. His only family in Bangladesh was his 70 year old mother and the wife of his brother who was working in the Middle East (paragraph 14). The Appellant could not recall where he lived in the UK when he first arrived. But he did stay with his aunt in 2009 (paragraph 16). He used to live at restaurants where he worked. His first job was in Somerset and he lived in a three to four bedroom flat with other restaurant staff. He then worked in Taunton for two and a half years, and then Bristol, where he worked and lived until 1998. He went to Illminster, where he stayed for eighteen months and then to Dursley, before he moved to a house owned by his aunt in Birmingham. He did not pay towards bills in Birmingham. He said he had payslips and he had P60s. He did not have a national insurance number (paragraph 16). He was always paid cash in hand. He still does not have a bank account.
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The Appellant went on to explain that he moved in with his aunt in 2003, where she moved to her present address, and prior to this date he used to stay with her on his days off when he had no work. Evidence from the Appellant’s aunt, Shaheada Begum, also confirmed most of these facts, including that the Appellant had not been to Bangladesh since he came to the UK in 1994. The judge recorded that, “She said that she maintained contact with the Appellant when he had a day off or when he had no work which is when he came to stay with her. When he did work he lived at his place of work. She confirmed that she knew he was coming to the UK in 1994 and that he had been sponsored by a man in Bangladesh” (paragraph 19). The aunt also confirmed that the Appellant had been working in Bristol and Somerset and at “other different places and that he lived down there for as long as he had a job there” (paragraph 20).
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The third witness giving evidence before the judge was Mr Shah Kabili, who claimed he was distantly related to the Appellant and that they came from the same village. This witness “said that after he arrived here in 2003 he used to contact the Appellant very often and see him every three to four months in Birmingham city centre. He did not know where he lived when he was working” (paragraph 22).
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The fourth witness before the judge was Mr Mohammed Yesuf Miah, who confirmed that the Appellant was his father’s sister’s son. His evidence was that,
“He first saw him in 1995 and that he used to see the Appellant at his aunt’s house and that the Appellant came to his house on his days off approximately twice a month. He said the Appellant had not been out of the UK since he had known him. He said that the Appellant’s aunt had lived at her address for ten to fifteen years and that she had been living there when he came to the UK in 1987. He said he knew that the Appellant had not left the UK since he had been here but then admitted that after the first visit he did not know where the Appellant had gone and he did not know where the Appellant was in between his regular visits” (paragraph 23).
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The final witness before the judge was Mr Tariq Akhter, who confirmed before the Tribunal that “he had known the Appellant since 1999 when they had worked together for one and a half years to three years at a restaurant in Illminster called the “Rajput Indian Restaurant”. He said that “they still keep in contact by telephone at least twice a week and they meet for coffee every two to four weeks” (paragraph 24).
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It was against this background that the judge applied the law to the facts and properly concluded that the Appellant could not meet the requirements of paragraph 276B(1)(a) because he had not been lawfully in the UK for ten years. However the judge also found that “there is insufficient evidence to satisfy me that he has been here for a continuous period of fourteen years as required under paragraph 276B(1)(b)”. This was because the Appellant
“has only produced payslips and P60 for 1995 and even though he claims to have worked as recently as November 2013 he has no other documentary evidence to show that he has been in the UK since that time. I note that he submitted his passport and wageslips and P60 with his original application but it now appears that those documents had been lost by the Respondent” (paragraph 25).
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The judge was careful to note that the fourteen year Rule, as it then was, “did not encourage overstayers to declare themselves to the authorities and that as a result of their lack of status, it would be difficult for them to provide evidence of this stay in the UK” but nevertheless held that, “the evidence called by the Appellant in support of his claim is not consistent or credible”.
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The reasons that the judge gave for this conclusion was that there was, on the one hand, “A distant relative who came here in 2003 and therefore has no knowledge of matters before that date and did not keep in touch until he came here but is sure he has not left the UK”. The judge held that his evidence “is of little help because it only covers the last ten years or so, when the Appellant himself acknowledges that he cannot show ten years’ lawful residence.” The judge also held that, on the other hand, “I have a nephew who claims that he saw the Appellant regularly at his aunt’s house, an address she has lived at for at least ten to fifteen years and the address she was living at when he came to the UK in 1987”. Of this the judge concluded, “I place no weight on this evidence at all for the simple reason that the aunt herself did not come to the UK until 1987” (paragraph 26).
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The judge’s conclusions with respect to the evidence heard from the witnesses was that, “Although all of the witnesses are positive that the Appellant has not left the UK since he came here in 1994, none of them have seen him every day or every week to be certain of that. They only saw him when he was not working or when he had a day off” (paragraph 27).
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Finally, the judge then added that, “Even if I am wrong and the Appellant has been here continuously since 1994, that does not mean that a grant of leave to remain is automatic” because the Respondent has to consider matters in relation to the public interest (paragraph 28). The judge also held that there were no compassionate circumstances put before the judge and that the Appellant was a fit and healthy man who came here deliberately to work and to remain in the UK and had paid no tax or contributed in any positive way to the UK economy (paragraph 29).
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In relation to human rights issues, the judge held that the Appellant could not succeed under the Rules that came into effect in July 2012, such that...
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