Upper Tribunal (Immigration and asylum chamber), 2021-04-20, HU/20329/2019
| Jurisdiction | UK Non-devolved |
| Date | 20 April 2021 |
| Published date | 11 May 2021 |
| Hearing Date | 06 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/20329/2019 |
Appeal Number: HU/.20329/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20329/2019
THE IMMIGRATION ACTS
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Heard at Manchester (via Skype) |
Decision & Reasons Promulgated |
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On 6 April 2021 |
On 20 April 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
GOLAM MUSTAFA
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A McVeety Senior Home Office Presenting Officer
For the Respondent: Mr Symes instructed by Diplock Solicitors.
DECISION AND REASONS
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The appellant appeals with permission a decision of First-tier Tribunal Judge Randall (‘the Judge’) promulgated on 9 April 2020, in which the Judge dismissed the appellant’s appeal on human rights grounds.
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Permission to appeal was granted by another judge of the First-tier Tribunal, the operative part of the grant being in the following terms:
“1. The Appellant seeks permission to appeal in time, against a decision of First-tier Tribunal (Judge Randall) dated 09/04/2020, whereby it dismissed the Appellant’s appeal against the Secretary of State’s decision to refuse his application for leave to remain on the basis of 10 years continuous residence.
2. It is argued that Counsel at the hearing before IJ Randall wrongly conceded Article 8 grounds, without instructions. This is misleading. Counsel did not concede Article 8 grounds. Counsel did not pursue them, which is a different matter. Different counsel has drafted a permission application.
3. None of the grounds is arguable, save that the Tribunal may have misinterpreted/misapplied the decision of Basnet 2012 UKUT 113 and/or Ahmed 2018 UKUT 00053 (see para.32). The Tribunal may have wrongly distinguished those cases on the basis that an incorrect fee had been paid rather than no fee. The issue was not only whether the Respondent had discharged the burden of proof as to whether the correct fee had been paid given the previous decisions of the First-tier and Upper Tier, to which no reference is made in the grounds. No consideration was given as to whether the Respondent given the Appellant the opportunity to pay the shortfall and his evidence was that he believed the correct fee had been paid.
4. Only the ground stated is arguable. There is an arguable material error of law.”
Error of law
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Directions were given by the Upper Tribunal providing an opportunity for the parties to file written submissions in relation to the proposed method of disposal and in support of their respective cases. No response was received from the Secretary of State. The relevant parts of the written submissions received behalf of the appellant from Mark Symes of Garden Court Chambers, dated 5 August 2020, are in the following terms:
‘Purported restriction on the grounds granted permission
3. The FTT permission decision purports to restrict the grounds upon which permission to appeal was granted. However, it is submitted that the asserted restriction is ineffectual. The head note to Safi [2018] UKUT 388 (IAC) states
“(1) it is essential for a judge who is granting permission to appeal only limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.”
4. However, here
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The Decision is plainly that part of Judge Fords notice of 4 May 2020, which is above the sharp emboldened line: “permission to appeal is granted.”
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Whereas the Reasons for the decision are plainly, the words beneath the same line.
5. Thus the stated restriction of the permission granted, illegitimately found within the reasons rather than the decision element, is ineffectual. Permission to appeal should be accepted as granted on all grounds.
Submissions on the merits
6. In the premise A submits that FTTJ Randall’s decision dated 9 April 2020, dismissing his appeal is flawed by material error of law and should be set aside.
Submissions on The First Ground
7. Although the FTT decision is relatively long and elaborate, the real issue is a short one.
8. A’s material immigration history is essentially as follows (the correct interpretation of the events at (a) is contested):
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A entered the UK on 10 September 2009 as a student; his lead was extended until 7 April 2013. Three applications in short succession beginning with one on 6 April 2013 with untreated as failing by R: the first two were rejected for invalidity, the third refused on its merits.
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A lodged an appeal against the third refusal (3 September 2013), which was allowed on 31 January 2014 by Judge Wiseman, applying the principles in CDS Brazil [2010] UKUT 305 (IAC), which showed that the refusal was disproportionate, in that it arose from essentially technical reasons which interrupted the legitimate studies of a person of good character who should be allowed to complete his education in the UK (AB39 [30]);
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A was granted leave to remain from 2 May 2014 to 1 July 2014, in recognition of Judge Wiseman’s decision: however A was unable to find a new Sponsor during this period, and his application of 1 July 2014 was refused on 19 January 2015, carrying a right of appeal, which he duly exercised: that appeal was allowed by Judge Mill for the FTT on 25 May 2016, on the basis that R had acted unfairly in allowing A too little time within which to find a new Sponsor and complete the related immigration formalities (AB50-51 [10-15]). R pursued an appeal against this decision to the UT, Judge Mailer accepting on 12 May 2017 AB59 that Judge Mill had been wrong to suggest he could give effect to his thinking by requiring a grant of leave of the 120 days: the period of leave was a matter for the SSHD although Judge Mills substantive reasoning on unfairness was upheld.
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R then deliberated on the outstanding July 2014 application for some time, before writing to A on 11 September 2019 AB61-62 to inform him that his application’s reconsideration would now be suspended for 60 days.
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On 4 October 2019 A made the application for indefinite leave to remain AB65ff, the refusal of which, on 27 November 2019 AB75ff leads to the present appeal.
9. The dispute between the parties as to the First Ground is as to the consequences of events in Spring 2013.
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A submits that he has held leave to remain at all material times: R bears the burden of proof and does not establish that A’s application of 6 April 2013 was invalid. Accordingly A has held leave from 10 September 2009 until the present date. He held his original student leave from September 2009 until April 2013; as the SSHD is not established that the April 2013 rejection was lawful, that application remained outstanding thereafter, bringing with it the concomitant extension of leave under s3C IA 1971 that applies to any timely outstanding application. Thereafter at all material times A has had either an application or an appeal outstanding.
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R’s case in the November 2019 refusal, essentially upheld by Judge Randall in the FTT on appeal, is that A’s April 2013 application was invalid leaving him with a break in his leave from when his prior leave expired on 7 April 2013 until 2 May 2014 when he was granted further leave with a view to implementing Judge Wiseman’s decision.
10. Khan [2017] EWCA Civ 424 explains the paradigm case for the purpose of analysing invalidity decisions and section 3C leave - i.e. one where asserted technical invalidity (such as the lack of the appropriate fee) in a first application (“A1”) causes the SSHD to treat a person as an overstay, and thus not to consider it appropriate to notify them of appeal rights regarding a second applications refusal (“A2”):
“Section 3C (1)-(2) of the Immigration Act 1971 provides that, where an application to vary leave to remain is made during the currency of existing leave, leave is automatically extended until that application is finally disposed of: I refer to this as “3C leave”. Accordingly, if the Secretary of State was indeed not entitled to reject A1, [the appellant] still enjoyed leave to remain at the point that he lodged A2 and is entitled to a right of appeal after that. The result is that whether there is a right of appeal against the refusal of A2 depends on the validity of the rejection of A1”.
11. The burden of proof in establishing invalidity is on the SSHD where the missing information as to the payment history is within the SSHD’s knowledge:
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The President in Basnet [2012] UKUT 113 (IAC0 {27}:
“We turned to the question of who bears the burden of proving that an application has been validly made. This would normally fall on the applicant, who would discharge it by producing evidence of acknowledgement of receipt or proof of postage. Here the application was received in time, but the question of whether it was accompanied by accurate billing data can be answered only by the respondent. In those circumstances, we conclude that the evidential burden of demonstrating that the application was not “accompanied by such authorisation (of the applicant or other person purporting to pay), as will enable the respondent to receive the entire feeding question” must fall on the respondent.”
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The head note to another Presidential panel decision states...
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