Upper Tribunal (Immigration and asylum chamber), 2019-10-08, [2019] UKUT 354 (IAC) (Das (paragraph 276B, s3C - application validity))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Vice President, Upper Tribunal Judge Blundell |
| Published date | 17 April 2020 |
| Date | 08 October 2019 |
| Hearing Date | 16 July 2019 |
| Subject Matter | paragraph 276B, s3C - application validity |
| Status | Reported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | [2019] UKUT 354 (IAC) |
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Upper Tribunal (Immigration and Asylum Chamber) |
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Das (paragraph 276B - s3C - application validity) [2019] UKUT 00354 (IAC)
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16 July 2019 |
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………………………………… |
Before
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
(1) tapan kumar das
(2) sudipta modak
(ANONYMITY DIRECTION not made)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr P Saini, instructed by JKR Solicitors
For the Respondent: Mr N Bramble, Senior Presenting Officer
(1) The validity of an application for leave to remain is to be determined with reference to the law in force at the time that it is made or purportedly made.
(2) An application which was invalid according to the law in force at the relevant time cannot be rendered valid by a subsequent change in the law.
(3) There must be adherence to proper standards of appellate advocacy in the Upper Tribunal. In the absence of a formal and timeous application to vary the grounds, professional advocates must expect to be confined to the grounds upon which permission was granted.
(4) When permission to appeal to the Upper Tribunal is granted following a successful application to the Administrative Court under CPR 54.7A (‘a Cart JR’), permission is granted by reference to the grounds to the Upper Tribunal, not the grounds to the Administrative Court: Shah [2018] UKUT 51 (IAC); [2018] Imm AR 707.
DECISION AND REASONS
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The appellants are a married couple of Bangladeshi nationality who were born on 1 April 1980 and 23 September 1987 respectively. They appeal against a decision of the First-tier Tribunal (Judge Keith), dismissing their appeals against the respondent’s refusal of their human rights claims.
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The first appellant’s application was for Indefinite Leave to Remain (“ILR”) under paragraph 276B of the Immigration Rules. The second appellant (and their three year old daughter) applied for leave to remain on family life grounds, seemingly anticipating that her husband would be granted ILR and that their applications would be assessed in that light. The respondent did not accept that the first appellant had accrued at least ten years of continuous lawful residence in the United Kingdom, however, and his application was accordingly refused under paragraph 276B(i)(a). The second appellant’s application, and the application made by their daughter, was refused in light of the decision on the first appellant’s case.
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Judge Keith agreed with the respondent’s conclusion under paragraph 276B of the Immigration Rules. He found that the first appellant was not able to satisfy the requirements of 276B for the reasons given by the Secretary of State and he found that the appellants’ removal from the United Kingdom would not be in breach of Article 8 ECHR. In order to understand the former conclusion, it is necessary to set out the salient parts of the first appellant’s immigration history.
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The first appellant entered the United Kingdom on 18 January 2007. He held entry clearance as a student which was valid until 12 September 2008. On 11 September 2008, he attempted to make an application for further leave to remain as a student. He used the wrong form, however, and the application was rejected. The respondent contacted him on 11 November 2008 and he subsequently completed the correct form and submitted it to the respondent on 25 November 2008. This application was successful, and he was granted leave to remain from 5 March 2009 to 30 November 2009.
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The first appellant secured four further periods of leave to remain. The final period was due to end on 30 June 2017 but the respondent decided to curtail that leave so that it would expire on 29 June 2015. Before that date, the first appellant made an application for leave to remain on human rights grounds. That application was refused. The outcome was reconsidered on 8 April 2016 and the decision was maintained on 25 April 2016. The appellant lodged a notice of appeal to the First-tier Tribunal against that decision on 9 May 2019 but he failed to provide a fee for the appeal. The appeal was accordingly struck out on 1 July 2016. On 28 July 2016, however, the appeal was reinstated following representations made by the first appellant’s representatives. The appeal was withdrawn on 10 January 2017, before it could be heard by a judge of the FtT.
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The first appellant’s application for ILR under paragraph 276B was made (or purportedly made) on 28 December 2016. In her decision of 28 December 2017, the respondent concluded that the events in 2008, which we have summarised at [4] above, broke the first appellant’s continuous lawful residence. She declined to exercise her discretion in respect of this gap because the first appellant had not provided any grounds upon which she was prepared to do so.
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The appellants were represented by a different firm of solicitors before the First-tier Tribunal. In the grounds of appeal before Judge Keith, it was submitted that the first appellant had been assured by the respondent in 2008 that his application for further leave would be treated as if it had been ‘in time’ when he resubmitted it using the correct form. It was also submitted that the respondent should have exercised her discretion in respect of the gap in autumn 2008. The judge recorded that the central issue was agreed to be the gap in the first appellant’s lawful residence between 12 September 2008 and his application for leave to remain as a student, which was subsequently granted on 5 March 2009: [3] and [14]. It was made clear that there was a residual argument in relation to Article 8 ECHR in the event that the central issue was resolved in the respondent’s favour: [16].
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Judge Keith analysed the evidence given by the first appellant with some care. The evidence included a contemporaneous note which had been made by the first appellant on 18 November 2008, recording a telephone call between him and a member of the respondent’s staff. Having considered that evidence, the judge did not accept that the respondent would have assured the first appellant that his application would be treated as ‘in-time’ when it was resubmitted using the correct version of the form. He found that the application which the first appellant had attempted to make in September 2008 was ‘invalid and was treated by the respondent as such.’: [36]. For reasons he gave at [37]-[39], the judge did not consider there to be any breach of Article 8 ECHR in returning the appellants and their daughter to Bangladesh.
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The appellants’ former solicitors sought permission to appeal to the Upper Tribunal. The application was refused by First-tier Tribunal Judge Hollingworth on 20 October 2018. A renewed application was made to the Upper Tribunal by a second set of representatives but that was refused by Upper Tribunal Judge Kebede on 6 January 2019. Judge Kebede noted that the grounds sought to invoke various aspects of the respondent’s policies which had not been brought to Judge Keith’s attention. She concluded that he had given sustainable reasons for finding that the appellants could not meet the Immigration Rules and that their removal would not breach Article 8 ECHR.
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With the assistance of their current representatives, the appellants made an application to the Administrative Court under CPR 54.7A. On 25 March 2019, Sir Stephen Silber granted permission to apply for judicial review. The only reason given for that decision was that ‘The grounds reach the threshold for obtaining permission’. In an order dated 2 May 2019, Master Gidden noted that neither party had requested a substantive hearing and he quashed Judge Kebede’s refusal of permission. On 29 May 2019, therefore, the Vice President granted permission to appeal in light of the High Court’s decision, reminding the parties that the Upper Tribunal’s task was that set out in s12 of the Tribunals, Courts and Enforcement Act 2007.
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We have thus far omitted any description of the grounds which were presented to Judge Kebede or to Sir Stephen Silber. We have done so intentionally, and in light of the fact that Mr Saini, who appeared for the appellants before us, sought at the outset of his submissions to focus his argument very specifically on one point. He sought to submit that Judge Keith had erred in his assessment of the respondent’s contention that the appellant’s September 2008 had been invalid. He asked us to consider the chronology. The first appellant had applied for further leave to remain on 11 September 2018. He had used the wrong form, in that he had used the version of form FLR(S) which had been issued in April 2008, whereas he should have used the version of the form which had been issued in August 2008. There was nothing in the respondent’s bundle, however, to support the assertion that she had written to the appellant stating that his application was invalid. Mr Saini submitted that Judge Keith had erred in...
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