Upper Tribunal (Immigration and asylum chamber), 2018-04-25, OA/06793/2015
| Jurisdiction | UK Non-devolved |
| Date | 25 April 2018 |
| Published date | 11 May 2018 |
| Hearing Date | 28 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/06793/2015 |
Appeal Number: OA/06793/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06793/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 28 March 2018 |
On 25 April 2018 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
MR DANIEL OLOWE
Appellant
and
ENTRY CLEARANCE OFFICER - SHEFO
Respondent
Representation:
For the Appellant: Mr P Harris, Counsel, instructed by Mansouri & Son solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.
DECISION AND REASONS
Background
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By a decision promulgated on 9 February 2018, I found an error of law in the decision of First-tier Tribunal Judge Lucas promulgated on 18 May 2017 dismissing the Appellant’s appeal against the Respondent’s decision dated 9 March 2015 refusing his application for entry clearance as a partner under Appendix FM to the Immigration Rules. I therefore set aside that decision and gave directions for a resumed hearing before me to re-make the decision. My error of law decision is annexed hereto for ease of reference.
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Pursuant to the directions made, on 21 February 2018, the Appellant’s solicitor filed a copy of the determination and reasons of First-tier Tribunal Judge C H Bennett promulgated on 22 January 2013 in appeal number OA/0693/2012 (“the 2013 decision”). The 2013 decision is relevant to the issue which arises in this appeal relating to the application of paragraph 320(11) of the Immigration Rules (“the Rules”).
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Under separate cover, on 1 March 2018, the Appellant’s solicitor filed a further witness statement from the Appellant dated 1 March 2018 which, I assume, was intended to comply with [2] of my earlier directions. Counsel for the Appellant had not been provided with that statement. Exhibited to that statement are refusals of entry clearance dated 28 September 2009 and 19 October 2009 and a number of documents which relate to the Appellant’s family life with his wife and daughter.
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I also have before me the statements and other documents filed at the time of the First-tier Tribunal hearing.
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The Appellant is resident in Nigeria. There was no application for him to give evidence by video-link. Although his wife was present at the hearing, Mr Harris did not ask that she be called to give oral evidence. I accept that it was unnecessary for her to do so because the Appellant’s family circumstances are not in dispute. The only factual matters which remain in dispute relate to the Appellant’s past immigration history and applications for entry clearance and those are matters about which the Appellant’s wife has no direct knowledge.
Limitations on the appeal
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I begin by noting that, although at [1] of my error of law decision, I indicated that both parties accepted that this is an appeal which proceeds under the provisions of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) prior to amendment by the Immigration Act 2014 (“the 2014 Act”), Mr Harris at this hearing initially appeared to resile from that position. The question of which appeal provisions apply has a significant bearing in this case on the facts which I can consider and it is therefore necessary to set out why Mr Harris’s submission is wrong.
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The amendments to the appeal provisions in the 2002 Act were made by the 2014 Act over a period of time and by a sequence of commencement orders. The relevant commencement order for these purposes is The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371) (“Commencement Order No 4”).
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Since Commencement Order No 4 is the last in the sequence of orders implementing the amendments to the appeal provisions in the 2002 Act, it is necessary to explain how those amendments were introduced previously. They operated by preserving “the saved provisions” (that is to say the appeal provisions which existed prior to the amendments by the 2014 Act) in certain respects and introducing the commencement of “the relevant provisions” (that is to say the provisions as amended by the 2014 Act) by further amendments to article 9 of an earlier commencement order (The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014).
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Article 8 of Commencement Order No 4 provides as follows (so far as relevant):-
“8(1) The Commencement Order is amended as follows.
(2) For article 9 substitute –
“9. – (1) Notwithstanding the commencement of the relevant provisions, the saved provisions continue to have effect and the relevant provisions do not have effect so far as they relate to the following decisions of the Secretary of State –
…
(d) a decision made before 6th April 2015 in relation to which, immediately before 6th April 2015, an appeal could be brought or was pending under the saved provisions.”
In this case, the Respondent’s decision under appeal is dated 9 March 2015.
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Those provisions have the following consequences. First, the appeal is against the refusal of entry clearance under section 82(2)(b) of the 2002 Act prior to amendment by the 2014 Act and not against a refusal of a human rights claim under section 82 post-amendment. Second, the grounds available to the Appellant include not only that the refusal of entry clearance is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights but also that the decision is not in accordance with the Rules or otherwise not in accordance with the law. Third, however, (and most importantly), sections 85 and 85A of the 2002 Act prior to amendment by the 2014 Act limit the matters which the Tribunal can consider as follows (so far as relevant):-
“85. Matters to be considered
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(4) On an appeal under section 82(1)…against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of decision.
(5) But subsection (4) is subject to the exceptions in section 85A.
85A Matters to be considered: new evidence: exceptions
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This section sets out the exceptions mentioned in section 85(5)
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Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b)…the Tribunal may consider only the circumstances appertaining at the time of the decision.
…”
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The Appellant’s daughter was born on 22 September 2016. As such, at the date of the Respondent’s decision, she was not even conceived. Accordingly, that is a circumstance arising after the date of the Respondent’s decision which, by reason of section 85A, I cannot take into account. The Appellant would need to make a further application for entry clearance based on his relationship as the parent of a British citizen child. As Ms Everett accepted in discussions, the Appellant’s position is probably strengthened (at least in human rights terms) by that relationship but it is not something I can consider in this appeal.
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That brings me on to a further point raised at the error of law stage which is noted at [30] of my earlier decision. As I there noted, Mr Harris was not prepared to concede that section 85A applies equally to the human rights ground. As I there noted, however, the decision under appeal is not a separate one to refuse a human rights claim but a decision to refuse entry clearance which is appealed on various grounds including that the decision breaches the Appellant’s human rights. As such, there is no distinction to be drawn based on section 85A.
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I also drew Mr Harris’ attention to the case of AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32. That case was concerned only with whether section 85(5) (now section 85A(2)) is compatible with Article 8 ECHR. As such, the distinction which Mr Harris sought to draw based on what is said at [9] of the judgment about whether the entry clearance officer is best placed to evaluate the effect of the change in circumstances has no merit. It is evident from the judgment that it was accepted by the House of Lords that section 85(5) (and therefore now section...
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