Upper Tribunal (Immigration and asylum chamber), 2019-03-28, HU/16262/2017
| Jurisdiction | UK Non-devolved |
| Date | 28 March 2019 |
| Published date | 13 May 2019 |
| Hearing Date | 13 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/16262/2017 |
Appeal Number: HU/16262/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16262/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 13 March 2019 |
On 28 March 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD
Between
mrs p s
(anonymity direction MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Chowdhury, Counsel.
For the Respondent: Mr S Whitwell, Home Office Presenting Officer.
DECISION AND REASONS
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The Appellant is a citizen of Bangladesh who made an application to the Respondent for entry clearance to the United Kingdom under Appendix FM of the Immigration Rules HC395 (as amended). The Respondent did not accept that she met the eligibility relationship requirement under Paragraph E-ECP.21 of the Immigration Rules because her Sponsor was not a British citizen, was not present and settled in the United Kingdom and nor was he in the United Kingdom with refugee leave or humanitarian protection. The Respondent did not accept that there were exceptional circumstances which would have amounted to a breach of her rights under Article 8 of the European Convention on Human Rights.
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The Appellant appealed and following a hearing, and in a decision promulgated on 14 August 2018 Judge of the First-tier Tribunal J Macdonald, dismissed her appeal.
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She sought permission to appeal which was granted by Judge of the First-tier Tribunal L Murray on 7 February 2019. Her reasons for so granting were: -
“1. The Appellant seeks permission to appeal, in time, against a Decision of First-tier Tribunal Judge J MacDonald, who in a Decision and Reasons promulgated on 14 August 2018 dismissed her human rights appeal.
2. The grounds assert that the Judge erred in concluding that the appeal could not succeed because the Appellant had not made a valid application under the Immigration Rules. It is argued that the Judge should have applied the appropriate Rules (paragraph 410) and concluded that the requirements were met.
3. It is arguable that the Judge erred in concluding that because the Appellant’s solicitors referred to the term ‘settlement’ in the application that paragraph 410 could not be considered as a valid application had not been made. It is arguable that the fact that the Appellant otherwise satisfied the Immigration Rules was not adequately considered in the balancing exercise.”
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Thus, the appeal came before me today.
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Mr Chowdhury began by relying on the grounds seeking permission to appeal and immediately referred me to question 48 of the Appellant’s application for United Kingdom entry clearance where he was asked to confirm his nationality and replied “STATELESS (1954 CONVENTION)”. The purpose of this reference was to highlight the asserted material error of the Judge at paragraphs 40 to 45 of his decision where he finds that the Appellant has not made a “valid application”. Mr Chowdhury’s simple submission is that the Appellant made use of the correct form and that the Judge has erred in coming to the conclusion that he did. In short, that the Appellant had made a valid application under the appropriate Immigration Rules.
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That being the case it was then open to the Judge to apply the appropriate Immigration Rules (paragraph 410) and conclude that the requirements of the Immigration Rules were accordingly met. The Judge has materially erred as the Appellant’s Solicitors referred to the term “settlement” in the application. Accordingly, the Judge should then have considered paragraph 410 of the Immigration Rules and not followed the entry clearance officer’s decision who concluded that the Appellant had not applied under paragraph 410 and paragraph 411 of the Immigration Rules because an application for limited leave to remain in accordance with those rules had not been made.
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In asserting that this is a material misdirection Mr Chowdhury urged me to accept that the Judge could have considered and taken this issue into account when looking at Article 8 of the European Convention on Human Rights or under the principles of Robinson [1997] EWCA Civ 3090 where Lord Woolf said:-
“… If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely “arguable” as opposed to “obvious”. Similarly, if when the Tribunal reads the Special Adjudicator’s decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the Grounds of Appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted.”
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The grounds refer me to the guidance given by the Upper Tribunal in PD (Grounds-implied variation – section 86(3)) Sri Lanka [2008] UKAIT 00058 and the headnote which states: -
“(1) The jurisdiction of the Tribunal is in all cases limited to the grounds of appeal, as varied before the Immigration Judge, plus any grounds contained in section 120 statements and Robinson obvious points. The tribunal is not empowered by section 86 of the 2002 Act to allow an appeal on some other basis. Grounds of appeal cannot be varied by implication.”
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The Judge further erred in finding that the Entry Clearance Manager was correct in asserting that the Appellant could not make an application for indefinite leave to remain under part 14 (Immigration Rules 407-408), because that rule only applies to a person who is stateless and not for their family. The Judge should have allowed the appeal under different Immigration Rules as he meets the criteria set out in paragraph 411.
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The Judge again erred at paragraph 65 of his decision when he concluded that...
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