Upper Tribunal (Immigration and asylum chamber), 2015-08-19, IA/39976/2014
| Jurisdiction | UK Non-devolved |
| Date | 19 August 2015 |
| Published date | 07 December 2015 |
| Hearing Date | 11 August 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/39976/2014 |
Appeal Number: IA/39976/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39976/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 11 August 2015 |
On 19 August 2015 |
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Before
UPPER TRIBUNAL JUDGE PLIMMER
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SHAIKH MUTTAHEDUR RAHMAN
Respondent
Representation:
For the Appellant: Mr Nath (Home Office Presenting Officer)
For the Respondent: Mr Biggs (Counsel)
DECISION AND DIRECTIONS
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The respondent is a citizen of Bangladesh born on 29 November 1990. The SSHD appeals with permission, against a decision of the First-tier Tribunal promulgated on 16 April 2015 to allow the respondent’s appeal on the basis that it is not in accordance with the law.
Background
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It is helpful in this case to summarise the relevant background facts and procedural history together.
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The respondent entered the UK with entry clearance as a student on 26 November 2009, when he was 18. He originally studied commercial management at London East Bank College but changed his place of study to London Premier College where he studied travel, tourism and hospitality.
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On 25 April 2013, and therefore before the expiry of his leave as a student on 30 April 2015, the respondent applied to vary his leave in order to extend it. The SSHD extended his leave to 31 August 2013. The respondent did not know about this decision until his solicitors were informed of this by his MP, many months after his leave expired. It is claimed by the respondent that the SSHD lost his passport and disadvantaged him by preventing him from pursuing his studies, during this process and failed to clearly address what had happened or what was to be done about it.
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In an application dated 12 November 2013 the respondent sought to persuade the SSHD that because of the failure to communicate her decision, he had been disadvantaged and a further decision should be taken granting him leave to remain. In a decision dated 19 December 2013 the SSHD refused the application for leave to remain outside the Rules.
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On 14 February 2014 the respondent lodged a claim for judicial review. The grounds submitted that whilst the SSHD addressed Article 8 she failed to address his claim that the negligent handling of his case was such that this should be remedied by a grant of discretionary leave outside the Rules. The grounds relied upon the observations in R (Nagre) v SSHD [2013] EWHC 720at [49] to the effect that the SSHD should genuinely bear in mind those cases that may be ‘exceptional cases within the SSHD’s guidance and should:
“seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted, and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.”
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In a consent order sealed on 22 July 2014 the respondent agreed to withdraw his judicial review claim upon the SSHD (1) reconsidering his application as if it were made whilst he had leave to remain, (2) issuing a new decision within three months and (3) providing the respondent with a right of appeal.
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In accordance with the consent order the SSHD treated the respondent’s 12 November 2013 application as if it had been made when he had leave to remain but in a decision dated 19 September 2014 refused to vary his leave to remain and decided to remove the respondent under section 47 of the Immigration, Asylum and Nationality Act 2006. As the decision was treated as if made when the appellant had leave, again in accordance with the consent order, the respondent was given a right of appeal. The SSHD’s notice of immigration decision was accompanied by a reasons for refusal letter of the same date. This first considered whether the respondent could meet the requirements of para 276ADE(1) and clearly explained why he did not. The SSHD went on to consider whether leave outside the Rules should be given because of exceptional circumstances but did concluded there were not exceptional circumstances which would make removal disproportionate.
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The respondent exercised his right of appeal and detailed grounds of appeal dated 7 October 2014 were prepared and lodged with the assistance of his current solicitors. These grounds submit that the decision “is erroneous; not in accordance with the immigration rules nor is it in accordance with the [SSHD’s] published policy”. The grounds do not set out with any degree of precision how the respondent meets the Rules or how the decision breaches policy. The focus of the grounds is really to set out why the removal of the respondent would constitute a disproportionate breach of Article 8.
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Mr Biggs represented the respondent at the hearing before the First-tier Tribunal. The respondent was unrepresented. Judge Khan accepted Mr Biggs’ submissions and found that the respondent has been disadvantaged by the SSHD’s actions and in failing to consider this when exercising her discretion or making the decision to remove, the SSHD’s decision is not in accordance with the law.
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The SSHD appealed against this decision on the basis that the Judge failed to identify what the SSHD has not considered or to make any findings on the points made in the refusal letter. The SSHD also pointed out that the Judge mistakenly referred to India instead of Bangladesh. Judge McDade considered these grounds arguable and granted permission to appeal on 11 June 2015.
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The matter now comes before me to determine whether or not the decision contains a material error of law.
Hearing
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At the hearing Mr Nath relied upon the grounds of appeal. Mr Biggs asked me to uphold the decision. I reserved my decision, which I now give with reasons.
Legal framework
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The SSHD made two ‘immigration decisions’ for the purposes of the Nationality, Immigration and Asylum Act 2002 in this case: (1) she refused to vary the respondent’s leave to remain under para 276ADE and (2) she decided to remove the respondent under section 47 of the Immigration, Asylum and Nationality Act 2006. Mr Biggs clarified that the respondent accepted he could not meet the requirements of the Rules and the focus of the appeal to the First-tier Tribunal was based on a challenge to the removal decision on the basis that it is otherwise not in accordance with the law (s 84(1)(e) of the 2002 Act). It is unfortunate that this argument was not made clear within the grounds of appeal to the First-tier Tribunal. Mr Biggs nonetheless indicated that it was made clear to Judge Khan who agreed to and did consider it.
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In Kabaghe (appeal from outside UK – fairness) Malawi [2011] UKUT 00473(IAC) Blake J re-stated the ambit of s 84(1)(e):
“36. Third, we remind immigration judges and the respondent that the statutory jurisdiction to consider whether an immigration decision is in accordance with the law includes consideration of whether the decision has been made fairly because there is a public law duty on the Secretary of State to act fairly: see discussion in Macdonald Eighth Edition at 19.09 citing Singh v Immigration Appeal Tribunal [1986] Imm AR 352; D.S. Abdi v SSHD [1996] Imm AR 148; BO (Nigeria) [2004] UKIAT 00026; AG (Kosovo) [2007] UKAIT 00082; AA (Pakistan) [2008] UKAIT 00003 and HH (Iraq) [2008] UKAIT 00051. These principles have been applied in the Upper Tribunal: see Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 151 (IAC) and Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC).”
37. Where the appellant challenges a removal decision on the basis that it is unlawful and unfair, and gives an apparently credible account of the treatment constituting the unfairness, the immigration judge is entitled to expect some form of evidential response from the respondent identifying what happened when and what factors informed the decision making. There was no information provided on the file as to how and why the decision to remove was reached apart from the reasons for the detention summary that has turned out to be wholly inaccurate and an immigration summary that is both incomplete and silent on the material issue.
38. We note that that the respondent was not represented...
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