Upper Tribunal (Immigration and asylum chamber), 2013-11-05, IA/04029/2013 & ors
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 November 2013 |
| Published date | 31 December 2013 |
| Status | Unreported |
| Appeal Number | IA/04029/2013 & ors |
Appeal Number: IA/04029/2013
IA/05279/2013
IA/05278/2013
IA/05277/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04029/2013
IA/05279/2013
IA/05278/2013
IA/05277/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
on 22nd October 2013 |
On 5th November 2013 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
ADERIMI OLUROTIMI OYEKANMI
BOLANLE CECELIA OYEKANMI
FIJAFOLUWA PEYEMI OYEKANMI
TOLUWANI AJOKE OYEKANMI
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Iqbal instructed by Maliks and Khan Solicitors.
For the Respondent: Mr Avery – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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This is an appeal against a determination of First-tier Tribunal Judge Griffiths promulgated on 15th July 2013 following a hearing at Taylor House on 28th June 2013, in which the Judge dismissed the appeal, under both the Immigration Rules and Article 8 ECHR, against the refusal of the Secretary of State to grant the appellants’ application for indefinite leave to remain in the United Kingdom.
Background
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The appellants’ are a family unit. The first appellant was granted entry clearance on 16th November 2007 to enter the United Kingdom as a highly skilled migrant although his date of entry was 3rd March 2008. His leave was subsequently renewed with his last grant of leave as a Tier 1 (General) Migrant being valid until 16th November 2012. The remaining appellants, his wife and children, joined him in the United Kingdom on 31st August 2009.
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All appellants’ are citizens of Nigeria whose respective dates of birth are 14th October 1964, 19th September 1974, 21st October 2003, and 28th April 2007. The second, third, and fourth appellant's are dependent upon the first appellant succeeding and so I shall focus initially on his appeal.
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Judge Griffiths found that the application was premature as rule 245CD requires an applicant to have spent a continuous period of five years lawfully in the United Kingdom in order to qualify for indefinite leave to remain (ILR) as a Tier 1 (General) Migrant. It was noted the first appellant arrived in the United Kingdom on 3rd March 2008 and applied for ILR on 18th October 2012, which was received on 25th October 2012. The Judge found that when the appellant made his application he was unable to meet the requirements of the Rules because he had not been in the United Kingdom for five years.
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Judge Griffiths found the claim the appellant had been given an assurance by an unnamed person within UKBA not determinative as no such assurance could have been given and there was no evidence to corroborate the appellant’s account [19].
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It is said the appellant did not pursue an Article 8 ECHR claim although Judge Griffiths considered this in any event [20] and found the decision to be proportionate.
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Permission to appeal was initially refused by the First-tier Tribunal but granted on a renewed application by the Upper Tribunal.
The law
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The relevant provisions are paragraph 245CD of the Immigration Rules. paragraph 245CD is to be found within part 6 of the Rules which is that relating to the Points-Based System and which provides:
245CD. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) DELETED
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) Unless the application is being made under the terms set out in Appendix S, the applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:
(i) as a Tier 1 (General) Migrant,
(ii) as a Highly Skilled Migrant,
(iii) as a Work Permit Holder,
(iv) as an innovator,
(v) as a Self-Employed Lawyer,
(vi) as a Writer, Composer or Artist,
(vii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant, or
(viii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or as a Work Permit Holder where the work permit was granted because the applicant was the subject of an Intra-Company Transfer.
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The appellant also relies upon Section 3C of the Immigration Act 1971 which provides:
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
Discussion
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The chronology is not disputed but it is alleged the Judge erred in law by failing to consider section 3C when assessing whether the appellant had spent a continuous period of five years lawfully in the United Kingdom.
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This is an appeal under section 82 Nationality, Immigration and Asylum Act 2002. The grounds of appeal only seek to rely upon two grounds, section 84 (1)(f), that a discretion under the Rules should have been exercised differently, and 84 (1)(c), a decision incompatible with his right under ECHR.
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It is necessary with regard to s 84 (1)(f) to identify the nature of the discretion in question. In relation to non mandatory refusals under paragraph 320 the inclusion of the wording “normally be refused’ connotes a discretion to be exercised by the decision maker. The wording of paragraph 245CD contains no such wording. The PBS, of which this rule forms part is based upon a philosophy that entitlement to enter and remain in the United Kingdom should be assessed by reference to objectively verifiable criteria. Whether a person is entitled to the grant of leave they seek is dependant upon them proving they are so entitled. It is a very detailed and highly prescriptive system as recognised by the Court of appeal in Alam [2012] EWCA Civ 960.
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Guidance to case workers is to be found in Chapter 6A of the IDI (current version dated 28th October 2013) which states:
General Requirements for indefinite leave to remain as a Tier 1 Migrant
Applicants must meet all of the relevant requirements set out in the Immigration Rules to qualify for indefinite leave to remain. In addition to the individual requirements of each migration category within Tier 1 of the Points Based System, applicants are required to meet the general requirements set out in sections 3-5 below.
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