Upper Tribunal (Immigration and asylum chamber), 2016-04-08, IA/20724/2014
| Jurisdiction | UK Non-devolved |
| Date | 08 April 2016 |
| Published date | 09 March 2017 |
| Hearing Date | 29 February 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/20724/2014 |
Appeal Number: ia/20724/2014
IAC-AH-SC-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/20724/2014
THE IMMIGRATION ACTS
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Heard at Centre City Tower, Birmingham |
Decision & Reasons Promulgated |
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On 20th October 2015, 15th December 2015 and 29th February 2016 |
On 8 April 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE FRENCH
Between
Attaullah Shinwari
(ANONYMITY order not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Brookes instructed by Malik Law Solicitors
For the Respondent: Mr N Smart, Senior Home Office Presenting Officer (20th October 2015)
Mr D Mills, Senior Home Office Presenting Officer (15th December 2015 and 29th February 2016)
DECISION AND REASONS
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The background to this appeal is set out in my decision on error of law made following the hearing on 20th October 2015 and promulgated on 28th October 2015, which is annexed, and which is to be read as incorporated into this decision. One point requires clarification; in the initial version of the decision on error of law the Appellant was, in error, referred to as coming from Pakistan. It is now accepted by all parties that he comes from Afghanistan.
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As was clear from the decision on error of law it was anticipated that the remaking of the decision would take place at or following the hearing on 15th December 2015. However, on that occasion the proceedings took an unexpected turn. Mr Mills, who was now appearing on behalf of the Secretary of State, asked me to revise my decision on error of law. He said that there was express authority on the point as to whether the relevant form of paragraph 276ADE(vi) of the Immigration Rules to be addressed by the First-tier Tribunal was that incorporated following the changes in the Statement of Changes in Immigration Rules HC 532 which came into effect on 28th July 2014. The case in point he said was a judgment of the Court of Appeal namely YM (Uganda) v SSHD [2014] EWCA Civ 1292. He regretted that this had not been brought to my attention at the error of law hearing. He said that the judgment in YM (Uganda) concerned a deportation appeal but the wording of the relevant section of HC 532 was the same as regards the implementation of the changes to paragraph 276ADE. The same statement of changes applied to both types of decision. In any case he said any remaking of the decision should incorporate paragraph 276ADE in its later form.
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Unsurprisingly Mr Brookes was not prepared for this argument and said that he needed time to consider the matter. I also raised the point as to whether, having set aside the decision of the First-tier Tribunal, I had at this stage jurisdiction to review my earlier decision. I considered putting the matter back for further argument but I also bore in mind that although one had been requested there was no Pushtu interpreter available and the hearing to remake the decision could not have gone ahead in any event. I accordingly adjourned the hearing, making further directions. These were in particular that the Respondent’s representative should serve a skeleton argument setting out the basis on which it was claimed that the Tribunal might revise an error of law finding and set that finding aside once made and as to why it was contended that the error of law finding might require revision. There was provision for a skeleton argument in response also to be served. The hearing was adjourned until 29th February 2016.
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At the resumed hearing I had the opportunity to consider the skeleton arguments submitted. In his skeleton argument, having reviewed the authorities, Mr Mills accepted that the decision already made to set aside the decision of the First-tier Tribunal could not be challenged. However he went on to say that the second issue, namely whether the Tribunal was bound to consider the version of paragraph 276ADE(vi) that existed at the date of the Secretary of State’s decision was still highly relevant. If the Tribunal was persuaded that YM (Uganda) was express authority for the contrary position and that the version of the Rules as at the date of hearing was applicable then, he submitted, the Tribunal was bound to dismiss the appeal in the light of the findings made by Judge Thomas. In that context he relied in particular upon the comments of Lord Justice Aikens at paragraph 39 of YM (Uganda). He contended that whilst the Court of Appeal was dealing with changes to a different paragraph the interpretation given by the Court of Appeal was equally applicable to the change to paragraph 276ADE(vi) given that the wording was, he said, identical. The Tribunal he therefore contended should dismiss the appeal on the basis of the unchallenged finding made by the First-tier Tribunal. He also submitted that there was no compelling case to go beyond the Immigration Rules in considering Article 8 issues.
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Mr Brookes for his part also accepted in his skeleton that the Tribunal had no power to review the decision on error of law already made. As to the remaking of the decision he contended that the version of paragraph 276ADE applicable prior to 28th July 2014 was the relevant form to be considered. He pointed out that YM (Uganda) concerned foreign criminals. The Appellant was not a foreign criminal and the Statement of Changes in Immigration Rules HC 532 differentiated between the implementation of the amendment to paragraph 276ADE(vi) as compared with the implementation of the amendments for Article 8 claims by foreign criminals. Different wording had been used. The Secretary of State had specifically referred to “applications” being decided after HC 532 came into force with regard to matters under paragraph 276ADE but to “claims” with regard to foreign criminals. As the Appellant’s application had been decided by the Secretary of State before the implementation date of HC 532 he submitted that the earlier version was that applicable. He then went to address the merits of the Appellant’s case and the earlier version of paragraph 276ADE(vi), noting in particular that the Secretary of State had earlier asserted that the Appellant was not from Afghanistan at all. By contrast the Secretary of State now accepted that the Respondent was from Afghanistan. It was necessary, he said, to reconsider matters already decided insofar as they had an impact on the current claim.
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Having retired to consider those skeleton arguments I confirmed that I agreed that there was no power for me to review the earlier decision to set aside the decision of the First-tier Tribunal. With regard to the applicable form of paragraph 276ADE(vi) I remained of the view that this was the wording in place prior to the implementation of HC 532. The two forms of the sub-paragraph are set out in my earlier decision promulgated on 28th October 2015, which is annexed, and I therefore do repeat them at this point but I refer to them.
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I found that there was force in the argument put forward by Mr Brookes that in the judgment of the Court of Appeal in YM (Uganda) the court was dealing with the amendment to the revisions relating to deportation of foreign prisoners. It is correct that the wording of the implementation provisions for the two amendments is different. That relating to paragraph 276ADE reads as follows:
“The changes set out in paragraphs 4 to 12 and 49 to 64 of this statement take effect on 28th July 2014 and apply to all applications to which paragraphs 276ADE to 276DH and Appendix FM apply (or can be applied by virtue of the Immigration Rules) and to any other ECHR Article 8 claims (save those from foreign criminals) and which are decided on or after that date.”
The implementation provision relating to deportation cases reads as follows:
“The changes set out in paragraphs 14 to 30 of this statement take effect on 28th July 2014 and apply to all ECHR Article 8 claims from foreign criminals which are decided on or after that date.”
There is to my mind a difference between the situation where a person in this country seeks leave from the Secretary of State in order to remain, and is therefore the prime mover in that circumstance, and the situation where the Secretary of State makes a decision to remove a foreign criminal and the party it is proposed to deport prays in aid Article 8 in order to resist that deportation decision. At paragraph 39 of YM (Uganda) Lord Justice Aikens referred specifically to the judgment of the Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192. However that judgment also refers to deportation provisions of the Immigration Rules. The traditional view has been that the form of the Rules which should be considered by a Tribunal at the appeal stage is that applicable as at the date of the decision made by the Secretary of State (or other deciding authority). Whilst I accept that this has been displaced in the case of...
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