Upper Tribunal (Immigration and asylum chamber), 2019-04-12, [2019] UKUT 196 (IAC) (Bhavsar (late application for PTA: procedure))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gleeson |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 April 2019 |
| Published date | 20 June 2019 |
| Status | Reported |
| Subject Matter | late application for PTA: procedure |
| Hearing Date | 07 March 2019 |
| Appeal Number | [2019] UKUT 196 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Bhavsar (late application for PTA: procedure) [2019] UKUT 00196 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 March 2019 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GLEESON
Between
chetan bhavsar
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G O’Ceallaigh, instructed by Eagles Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer
(1) There is nothing in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that prevents the First-tier Tribunal from refusing to admit an application for permission to appeal to the Upper Tribunal, where the application is made outside the relevant time limit and the First-tier Tribunal does not extend time.
(2) The appropriate course, in the case of such an application, is for the First-tier Tribunal to refuse to admit it. This will mean that any subsequent application to the Upper Tribunal in the case for permission to appeal to that Tribunal will be subject to rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, whereby the Upper Tribunal must only admit the application made to it (whether or not that application was in time) if the Upper Tribunal considers it is in the interests of justice for it to do so.
DECISION AND REASONS
A. INTRODUCTION
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The appellant, born in 1988, is a citizen of India. He first entered the United Kingdom in September 2011, with entry clearance as a student until 8 June 2013. The appellant came here to pursue a course in Tourism Management at the University of West London, which he completed in 2013. In that year, he obtained further leave to remain as a student until September 2016. The appellant’s purpose in obtaining this further leave was to study under the auspices of Glyndwr University, which at the time had an agreement with the London School of Business and Finance (LSBF) to deliver tuition for Chartered Institute of Management Accountants courses.
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The appellant’s statement of 9 October 2017 describes a number of important problems he encountered regarding his course with Glyndwr/LSBF, as well as complaints about the activities of his agent who pressured the appellant into parting with a considerable sum of money in respect of the course.
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In January 2014, the appellant received confirmation from Glyndwr University of its decision to withdraw him as a student, by reason of his alleged poor attendance at classes.
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On 9 September 2014, Glyndwr University wrote to the appellant to inform him that he had been withdrawn for the additional reason that the University had been informed by the UKVI that the appellant had obtained an invalid ETS TOEIC test certificate.
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On 12 November 2014, the appellant made a human rights application to the respondent, on the basis of his private and family life in the United Kingdom. Despite the voluminous nature of the materials assembled by the appellant in connection with the appeal proceedings, our attention has not been drawn to a copy of this application. As far as can be seen, however, the application did not rest on the appellant’s contention that his human rights demanded the respondent should grant him a limited period of leave to pursue further studies. Certainly, the respondent’s decision of 23 May 2016, refusing the human rights claim, makes no mention of this. Under the heading “Decision Under Exceptional Circumstances” the only aspect raised by the appellant is said to be that he has “family and friends in the UK”.
B. APPEAL TO THE FIRST-TIER TRIBUNAL
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The appellant’s appeal against the respondent’s refusal decision was heard by First-tier Tribunal Judge G Clarke at Hatton Cross on 11 May 2018. The judge dismissed the appellant’s appeal. In doing so, the judge carefully considered the issue of whether the appellant had cheated in his TOEIC test, by using a proxy to take the test for him. The judge found that, in the particular circumstances of the appellant, he had had nothing to gain by taking the test because he had already been accepted onto the CIMA course on the strength of his IELTS Certificate, rather than the TOEIC.
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That being so, the judge found that the appellant met the suitability requirements in paragraph 276ADE(1) of the Immigration Rules. In order to meet the remaining requirements of paragraph 276ADE, however, the appellant had to show that there were very significant obstacles to his reintegration in India. The judge found that the appellant had lived the vast majority of his life in India, where he had been raised and educated. He was familiar with its culture and way of life. He had also shown resolve, resilience and resourcefulness in coming from India to an unfamiliar country such as the United Kingdom. Those qualities and characteristics would, according to the judge, benefit the appellant, were he to return to India.
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Having therefore found that the appellant could not meet the requirements of the Immigration Rules, by reference to his private life, the judge turned to consideration of the appellant’s Article 8 rights, outside those rules.
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Understandably, the judge considered that the relevant question in the present case was the fifth of those posed by Lord Bingham in Razgar v Secretary of State for the Home Department [2004] UKHL 27; namely, whether the interference with the appellant’s private life, by requiring him to leave the United Kingdom, was proportionate to legitimate public end sought to be achieved.
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In determining that issue, the Judge had regard, as he was required to do, to the relevant factors contained in section 117B of the Nationality, Immigration and Asylum Act 2002. The judge decided that little weight should be attached to the appellant’s private life, which had been built up in the United Kingdom whilst his immigration status had been “precarious”. We note in passing that, for these purposes, it has now been authoritatively decided that a person with only limited leave to remain occupies a precarious position in the United Kingdom (Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58).
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At paragraph 62, the judge considered that the appellant had overstayed and therefore shown a disregard for the immigration laws of the United Kingdom. It is, however, common ground that the appellant has at no material time been an overstayer. His extant leave was extended by reason of section 3C of the Immigration Act 1971.
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The judge’s conclusions were as follows: -
“65. I rely on all my earlier findings in respect of Paragraph 276ADE(1) which I do not need to repeat here. I also rely on the fact that the Appellant came to the United Kingdom in 2011 with leave as a student and therefore he ought not to have harboured any expectation of being permitted to stay in the United Kingdom on a permanent basis.
66. I accept that the Appellant has family here in the United Kingdom. His evidence is that he has an aunt and uncle who support him financially and a sister as well as cousins. I find it extremely unusual that none of his family submitted a Witness Statement in support of his appeal or attended the hearing. In any event, the Appellant will be able to maintain his relationships and friendships through modern means of communication such as phone and Skype and various forms of social media. There is nothing in the Appellant’s family dynamics or friendships that would tip the balance in his favour when weighing the proportionality of his removal.
67. The submission was made that the Appellant’s life has been ruined by taking the TOEIC test and if he had never taken it he would not be in the situation in which he finds himself.
68. On the specific facts of this case, there is no credible evidence that the Appellant’s removal is a disproportionate interference with his family life.
69. I find that the public interest is strong. There is nothing in the specific facts of this case that would outweigh the public interest.
70. Accordingly, the appeal is refused.”
C. PROCEDURAL ISSUES
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We turn now to the procedural issues raised by this case. As will be seen, they raise matters of considerable general significance.
(a) The application to the First-tier Tribunal for permission to appeal
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The First-tier Tribunal’s decision was sent to the appellant’s solicitors under cover of a notice (Form IA60) dated 20 June 2018. The notice contained the following information:-
“Either party may apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal on a point of law arising from the First-tier Tribunal’s decision.
Any application must be made in accordance with the relevant Procedure Rules and must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision …”
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It is not disputed that the appellant’s solicitors received the decision and notice on 22 June 2018.
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On 5 July 2018, at 18:18...
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