Upper Tribunal (Immigration and asylum chamber), 2021-03-08, IA/00049/2019

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

Harpreet Singh

(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mr Akhter of Edward Marshall Solicitors

For the Respondent: Mr Walker, Senior Presenting Officer

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals, with permission granted by the First-tier Tribunal (Judge Loke) against a decision made by First-tier Tribunal Judge Skehan on 8 January 2020. By that decision, Judge Skehan (“the judge”) allowed an appeal which had been brought by Mr Singh against decisions made by the respondent on 9 August 2014 and 4 December 2014.

2. To avoid confusion, I shall refer to the parties as they were before the FtT: Mr Singh as the appellant and the Secretary of State for the Home Department as the respondent.

Background

3. The appellant entered the United Kingdom on 26 October 2009. He held entry clearance as a Tier 4 (General) Student Migrant which was valid from 15 October 2009 to 30 August 2013.

4. Before the expiry of his leave to remain, the appellant applied for further leave in the same capacity. The respondent made two decisions in response to this application. The first is contained in form IS151A, dated 9 August 2014, which states that the appellant is a person in respect of whom removal directions may be given in accordance with section 10 of the Immigration and Asylum Act 1999 because he is a person who used deception in seeking leave to remain. The reasons given for that decision were as follows:

You are specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by Education Testing Service, that on 17 July 2013 an anomaly with your speaking test indicated the presence of a proxy test taker.

5. Form IS151A Part 2, which bore the same date and accompanied the IS151A, stated that the appellant was entitled to appeal to the First-tier Tribunal (IAC) after he had left the United Kingdom. Directions were to be given for his removal to India.

6. I was told by Mr Akhter, on instructions from the appellant, that these notices were written on 30 June 2014 but were served on the appellant on 9 August 2014, hence the manuscript date on each. A third document was similarly dated. This was a two-page letter in which the respondent refused the appellant’s application for leave to remain under Tier 4 of the Points Based System. There were three grounds of refusal under the Immigration Rules, although each was based on the allegation that the appellant had used a proxy to take an English language test and ETS’s cancellation of his certificate for that reason. The decision described itself as a ‘Refusal to Grant Leave to Remain’. The reason for that description is clear from section B of the letter, which was in the following terms:

This decision is not an immigration decision under section 82.Section 82(2)(d) concerns a “refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain.” This is not the situation in this case, as the effect of the prior section 10 decision means that any existing leave to enter or remain in the United Kingdom was invalidated under section 10(8) so you have no leave to enter or remain at the time the decision to refuse to vary leave to remain was notified.

7. The appellant’s former representatives attempted to lodge an appeal against these decisions. It was submitted, as I understand it, that the appellant was able to pursue an appeal against one or more of the decisions above on human rights grounds. On 1 October 2014, First-tier Tribunal Judge Doyle decided that the appellant had no right of appeal. He noted that the appellant was only entitled to appeal whilst in the United Kingdom if he could show that section 92 of the Nationality, Immigration and Asylum Act 2002 applied. Having considered R (Nirula) v FtT(IAC) [2012] EWCA Civ 1436, Judge Doyle held that the appellant had not made a human rights claim before the refusal of his application for leave to remain, as a result of which his right of appeal could only be exercised from abroad.

8. In the meantime, on 13 August 2014, the applicant had formally asserted that his removal to India would be in breach of his rights under the ECHR. The respondent refused that claim in a letter dated 4 December 2014. The respondent considered there to be no basis inside or outside the Immigration Rules to grant leave to remain. Under the sub-heading Certification – Designated State, the letter stated at [21]-[22]:

In addition, your client’s human rights claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that the claim is clearly unfounded unless she is satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your client’s claim is clearly unfounded. Therefore, it is hereby certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded.

As your client’s human rights claim has been certified as clearly unfounded, he may not appeal while in the United Kingdom.

9. The appellant also issued judicial review proceedings challenging the respondent’s decisions. Permission to proceed was refused by Upper Tribunal Judge Smith in a decision which was sent to the parties on 15 January 2016. Relying on what had been said by the Court of Appeal in R (Mehmood & Ali) v SSHD [2015] EWCA Civ 744; [2016] 1 WLR 461, Judge Smith held that there were no exceptional circumstances which tended to suggest that an out of country right of appeal was an inadequate remedy. Judge Smith also certified that the claim was totally without merit, thereby preventing the applicant from renewing his application to an oral hearing.

The Appeal to the First-tier Tribunal

10. On 17 May 2019, another firm of solicitors (SBM Solicitors of Hounslow) lodged form IAFT-5 with the First-tier Tribunal, seeking to appeal against the decisions which were communicated on 9 August 2014. There were lengthy grounds of appeal, the detail of which I do not propose to consider at this stage. In the section of the form which permitted an extension of time to be sought, however, the appellant’s solicitors had written this:

This appeal is filed in relevance of the recent decision of the Court of Appeal in Ahsan & Ors v SSHD [2017] EWCA Civ 2009 to the instant application.

In short the applicant submits that Ahsan confirms that the respondent was wrong to certify the applicant’s human rights claim, by his decision by letter dated 19.12.2014, purportedly pursuant to s94 of the Nationality, Immigration and Asylum Act 2002 as amended (“the 2002 Act”). This is because the human rights claim depended on the correctness of the respondent’s allegation that the applicant was a TOEIC cheat, and the applicant’s case that he is not a cheat is not bound to fail.

In light of the above facts, we request the tribunal to extend time for appealing in the interest of Justice and Fairness.

11. The First-tier Tribunal issued directions, requiring the appellant or his representatives to explain why there had been a delay between the handing down of the decision in Ahsan on 5 December 2017 and the lodging of the appeal in May 2019. That direction elicited an uninformative statement from the appellant in which he stated that he had been told that he should be afforded an in-country right of appeal as a result of the decision in Ahsan. He stated that he had made human rights representations to the respondent on 22 January 2018 but had received no response.

12. On 10 October 2019, the respondent filed and served a short bundle of documents. The copy in the Tribunal’s file contains some copied pages from the appellant’s passport, a diploma in Business Management he obtained in April 2013, a copy of the certified refusal from December 2014 and the IAFT-5 with the grounds of appeal and supporting documents.

13. The file was placed before a Duty Judge, just as it had been in 2014. The judge decided not to make a ruling on the papers as to the validity of the appeal. It was noted instead that

Appeal is not out of time since no ROA was given in the first place. As for validity, this can be argued as a preliminary point before the Trial Judge (given the complexities which exist, inappropriate to be resolved at this stage).

14. The matter therefore came before the judge, sitting at Hatton Cross on 8 January 2020. The appellant was represented by a solicitor, Mr Chohan. The respondent was represented by a Presenting Officer, Mr Iqbal. For reasons which are...