Upper Tribunal (Immigration and asylum chamber), 2012-08-01, [2012] UKUT 304 (IAC) (Ferrer (limited appeal grounds; Alvi))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr P R Lane |
| Status | Reported |
| Date | 01 August 2012 |
| Published date | 29 August 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 04 April 2012 |
| Subject Matter | limited appeal grounds; Alvi |
| Appeal Number | [2012] UKUT 304 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304(IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 4 April 2012 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE PETER LANE
Between
maria rosario cabrera ferrer
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Watterson, Counsel, instructed by Joseph Thaliyan Solicitors
For the Respondent: Mr J Parkinson, Senior Home Office Presenting Officer
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In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. In this way, the judge identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal’s subsequent case management directions.
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Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant’s grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal’s administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal.
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If an applicant who has been granted permission to appeal to the Upper Tribunal on limited grounds only applies to the Upper Tribunal on grounds in respect of which permission has been refused, the Upper Tribunal judge considering that application should not regard his or her task as merely some form of review of the First-tier Tribunal’s decision on the application.
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Whatever may be the position in other Chambers of the Upper Tribunal, in the Immigration and Asylum Chamber the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 is unlikely to be advanced by adopting a procedure whereby new grounds of appeal can be advanced without the permission of the Upper Tribunal under rule 5 of those Rules.
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The test enunciated by the Supreme Court in Alvi [2012] UKSC 33, for deciding whether material not contained in immigration rules can be relied upon by the Secretary of State in making decisions on the grant of leave to enter or remain, probes deeper than the “substantive/procedural” test articulated in the wake of Pankina [2010] EWCA Civ 719, in that it articulates what makes a particular provision one that has to be included in immigration rules: namely, does it amount to a condition of succeeding under those rules? However, there may still be difficulties in determining whether a particular requirement amounts to such a condition or is merely a “procedural” requirement.
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Applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.
DETERMINATION AND REASONS
1. The appellant, a citizen of the Philippines born on 14 January 1965, was given leave to enter the United Kingdom on 23 May 2006 as a work permit holder. The period of her leave was until 15 May 2011 and the conditions attached to that leave included that she should have no recourse to public funds and that the work (and any changes to it) had to be authorised.
2. On 5 May 2011 the appellant applied for indefinite leave to remain in the United Kingdom as a work permit holder. On 30 June 2011 the respondent made a decision to refuse to vary the appellant’s leave to remain for the following reason:-
“In view of the fact that you are currently employed as a Senior Care Assistant with Southern Cross Healthcare and have provided payslips which show that your rate of pay per hour is currently £5.93 and not at the minimum rate of pay as indicated in the codes of practice guidance which stands at £7.02 per hour, the Secretary of State is not satisfied that your employer has certified that you are paid at or above the appropriate rate for the job as stated in the codes of practice for Tier 2 sponsors published by the UK Border Agency. Therefore your application has been refused.”
3. The appellant appealed against that decision to the First-tier Tribunal and on 10 August 2011 her appeal was heard at Stoke-on-Trent by First-tier Tribunal Judge McDade. Then, as now, the appellant was represented by Ms Watterson of Counsel.
4. In a determination dated 23 August 2011, the judge dismissed the appellant’s appeal.
5. As in force at the date of decision, paragraph 134 (indefinite leave to remain as a work permit holder) of the Immigration Rules read as follows:-
“134. Indefinite leave to remain may be granted on an application to a person provided:
(i) he has 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 work permit holder (under paragraphs 128 to 133 of these rules), and the remainder must be made up of any combination of leave as a work permit holder or leave as a highly skilled migrant (under paragraph 135A to 135F of these rules) or leave as a self-employed lawyer (under the concession that appeared in chapter 6, section 1 Annex E of the Immigration Directorate Instructions), or leave as a writer, composer or an artist (under paragraphs 232 to 237 of these rules);
(ii) he has met the requirements of paragraph 128(i) to (v) throughout his leave as a work permit holder, and has met the requirements of paragraph 135G(ii) throughout any leave as a highly skilled migrant;
(iii) he is still required for the employment in question, as certified by his employer;
(iv) his employer certifies that he is paid at or above the appropriate rate for the job as stated in the code of practice for Tier 2 sponsors published by the UK Border Agency, and
(v) he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with paragraph 33BA of these Rules, unless he is under the age of 18 or aged 65 or over at the date of his application;
(vi) he does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974”.
6. The First-tier Tribunal Judge’s determination dealt with two matters. First, he considered the submission advanced by Ms Watterson that, since the reason for the refusal of the appellant’s application was that the current appropriate rate for her job with Southern Cross was not at or above that stated in the code of practice, the judgments of the Court of Appeal in Pankina [2010] EWCA Civ 719 in effect rendered the respondent’s reliance on that guidance unlawful. Secondly, the judge dealt with the submission that removal of the appellant, pursuant to the decision to vary her leave, represented a disproportionate interference with the appellant’s private and family life rights under Article 8 of the ECHR.
7. So far as Pankina was concerned, the judge considered that there was a material difference between, on the one hand, requirements contained in guidance to have held funds for certain continuous periods and, on the other, hourly rates for particular jobs. The first such requirements “could have been, but were not, incorporated into the Immigration Rules”. As to the second, “it cannot be expected that regular changes to an hourly rate for example to keep pace with inflation, required changes to the Immigration Rules which would be a frequent occurrence” (paragraph 2). The judge considered that the guidance in question was available to persons in the position of the appellant and that although “it is probable that she had no control over her hourly rate and became increasingly disadvantaged by it such that she was having to work long hours to make a decent wage, this is not the point. The point is that she was required to satisfy the quite transparent requirements and she has failed to do so”.
8. Turning to Article 8, the judge accepted that the appellant would have developed friendships in the United Kingdom over the time that she had been here and that she also had a boyfriend. Her removal would, consequently, constitute an interference with her right to a private life “and … this interference would not harm, for example immigration control as the Appellant is a valuable member of the UK economy as a tax payer and is performing a useful job”. The fact that the appellant had developed friendships after five years in the United Kingdom did not, however, give her a:
“right to...
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