Upper Tribunal (Immigration and asylum chamber), 2019-11-25, [2019] UKUT 399 (IAC) (Niaz (NIAA 2002 s. 104: pending appeal))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 25 November 2019 |
| Published date | 19 December 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | NIAA 2002 s. 104: pending appeal |
| Hearing Date | 23 October 2019 |
| Appeal Number | [2019] UKUT 399 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Niaz (NIAA 2002 s. 104: pending appeal) [2019] UKUT 00399 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 23 October 2019 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR CMG OCKELTON, VICE PRESIDENT
Between
Muhammad ayaz niaz
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr F Farhat, Solicitor, Gulbenkian Andonian Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
Direction Regarding Anonymity – rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, no report of these proceedings shall identify any member of the appellant’s family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. This direction supersedes that made by the First-tier Tribunal.
(1) Section 104(2) of the Nationality, Immigration and Asylum Act 2002 contains an exhaustive list of the circumstances in which an appeal under section 82(1) is not finally determined.
(2) Although section 104(2) is describing situations in which an appeal is not to be regarded as finally determined, the corollary is that, where none of the situations described in sub-paragraphs (a) to (c) apply (and the appeal has not lapsed or been withdrawn or abandoned), the appeal in question must be treated as having been finally determined.
(3) An appeal which has ceased to be pending within the meaning of section 104 becomes pending again if the Upper Tribunal’s decision refusing permission to appeal from the First-tier Tribunal is quashed on judicial review.
DECISION AND REASONS
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The appellant is a citizen of Pakistan who entered the United Kingdom in 2004, aged 27, as a student. In April 2009, the appellant applied for leave as a spouse of a person present and settled in the United Kingdom. That was rejected by the respondent on 8 June 2009. On 15 June 2009, the appellant applied for further leave as the spouse of such a person; and this was granted by the respondent from 2 September 2009 to 2 September 2011.
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On 2 September 2010, however, the appellant’s leave to remain as a spouse was curtailed. On 16 September 2010 the appellant filed an appeal against that decision but his appeal was dismissed in December 2010. On 7 July 2011, the appellant’s appeal against the decision of the First-tier Tribunal was allowed.
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Also on 16 December 2010, the appellant had submitted an application for leave to remain, relying upon Article 8 of the ECHR. The respondent granted him discretionary leave from 30 August 2011 to 30 August 2014.
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On 28 September 2012, the appellant submitted an application for indefinite leave to remain on the basis of ten years continuous lawful residence in the United Kingdom. That application was refused by the respondent on 9 December 2015 by means of a decision which, it is common ground, included the refusal by the respondent of the appellant’s human rights claim.
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The appellant’s appeal came before the First-tier Tribunal in January 2018. Attention rightly focussed upon the ability or otherwise of the appellant to meet the requirements of paragraph 276B of the Immigration Rules. If the appellant could not do so, there would be no prospect of the respondent granting him indefinite leave to remain under paragraph 276C. In that event, it would be necessary to consider paragraph 276ADE(1), which contains the requirements to be met by a person seeking leave to remain on the grounds of a protected private life within the scope of Article 8.
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Paragraph 276B provides as follows:-
276B The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”
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In refusing the appellant’s application, the respondent had taken the view that the application under paragraph 276B fell for refusal “under the general grounds for refusal” (paragraph 276B(iii)) because of certain behaviour of the appellant. The First-tier Tribunal Judge found in favour of the appellant on this issue and we need say no more about it.
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The First-tier Tribunal Judge, however, agreed with the respondent that the appellant could not meet the requirements of paragraph 276B(i)(a) in that he had not had ten years’ continuous lawful residence in the United Kingdom. This was because the appellant had not had lawful leave between 7 April 2009, when his statutorily-extended leave under section 3C of the Immigration Act 1971 expired, and 2 September 2009, when he was granted further leave to remain. 7 April 2009 was the date on which an application by the appellant, made on 24 March 2009 for leave to remain as the spouse of a settled person, had been rejected by the Secretary of State, on the basis that the application was invalid. The appellant had re-submitted that application on 14 April 2009, leading to another rejection by the respondent on 8 June 2009. It was only when the appellant submitted the application again, on 15 June 2009, that he was granted leave on 2 September 2009.
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The First-tier Tribunal Judge considered the period of unlawful leave in 2009 to be in excess of 28 days and that the later grant of leave did not rectify matters. The judge, accordingly, considered the appellant’s private life by reference to paragraph 276ADE(1) but concluded that the appellant did not satisfy its requirements.
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Having concluded that the appellant’s case “under Article 8 outside the Rules” could not succeed, the appellant’s appeal was dismissed (paragraphs 68 and 69).
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Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal and, subsequently, by the Upper Tribunal. In her decision, Upper Tribunal Judge Smith found that the appellant’s sole ground of appeal was unarguable:-
“The Appellant was put on notice by the Respondent in the reasons for refusal letter that he was said to have made an application on 24 March 2009 which was refused on 7 April 2009 and a further application on 14 April 2009 which was refused on 8 June 2009 prior to making the application on 15 June 2009 which was granted. The Appellant did not apparently challenge those assertions …
It appears to be asserted that there was no gap of five months as found by the Judge because of the operation of the “28 days” grace periods. That is unarguable. The Appellant had section 3C leave until the refusal of the first application on 7 April 2009 and made a further application on 14 April. That this was in the period of grace which the Respondent allows without automatic refusal on grounds of overstaying does not however mean that it extends section 3C leave. Accordingly, the Judge was right to find that the Appellant had no leave between April 2009 and September 2009 when he was next granted leave and, accordingly, could not claim to have had continuous lawful residence for a period of ten years.”
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In order to understand the legal position following Upper Tribunal Judge Smith’s refusal of permission to appeal, it is necessary to set out the following provisions of the Nationality, Immigration and Asylum Act 2002:-
“78. No removal while appeal pending
(1) While a person’s appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
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92. Place from which an appeal may be brought or continued
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(8) Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is...
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