Upper Tribunal (Immigration and asylum chamber), 2021-06-03, HU/16690/2019
| Jurisdiction | UK Non-devolved |
| Date | 03 June 2021 |
| Published date | 18 June 2021 |
| Hearing Date | 25 March 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/16690/2019 |
Appeal Number: HU/16690/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16690/2019 (V)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 25 March 2021 |
On 3 June 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
MUHAMMAD IMTIAZ
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z. Malik QC, instructed by Hiren Patel Solicitors.
For the Respondent: Ms S. Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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This matter comes before us following the quashing by the Administrative Court of an earlier refusal of permission to appeal. The order of the High Court was made by Master Gidden in the usual form, simply quashing the decision to refuse permission, despite an indication by Mostyn J that an order would be made in a different form, in particular, directing the Upper Tribunal to grant permission to appeal and transferring the costs of the Judicial Review proceedings to the Upper Tribunal to be dealt with at the conclusion of the appeals.
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Before us, Mr Malik QC indicated that he was content to operate on the basis of the order as made, and that he required permission to appeal. On behalf of the Secretary of State, Ms Cunha told us that she did not resist the application for permission to appeal. It appeared to us that the matters to be canvassed before us were clearly arguable, and we therefore granted permission. With the agreement of the parties, we accordingly pass to substantive consideration of the appeal.
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The appellant is a national of Pakistan, who entered the United Kingdom in 2009, with leave. He was granted further leave, most recently as a Tier 1 Entrepreneur. That leave was due to expire on 20 May 2018.
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On 18 May 2018 the appellant submitted an application for further leave as a Tier 1 Entrepreneur. That application was refused, with a right to administrative review, on 13 March 2019. The appellant exercised the right to administrative review, but the decision was maintained in a decision of 29 April 2019. On 11 May 2019 the appellant made a further application for leave as a Tier 1 Entrepreneur. It is common ground that at the time of making that application the appellant did not have existing leave; but it is also common ground that the application was made within 14 days of the expiry of his leave. On 23 September 2019, the 11 May application not having been decided, the appellant made an application for indefinite leave to remain on the basis of 10 years’ continuous lawful residence. On 27 September 2019 the Secretary of State refused the application for indefinite leave to remain on the basis of 10 years’ continuous lawful residence. The primary reason for that refusal was that the appellant’s lawful residence amounted to only 9 years and 6 months, his subsequent residence, following the expiry of his leave earlier in 2019, having been unlawful. In making the decision, the Secretary of State went on to consider other elements of the rules relating to family life and private life, and to the appellant’s article 8 rights outside the rules. She noted that the appellant’s family were not in the United Kingdom but that he could be reunited with them and they could live together as a family in Pakistan. The conclusion was that the appellant did not qualify for leave under any of the provisions of the Rules, and that there was no reason why refusing him leave, and requiring him to return to Pakistan, would be a breach of any provision of the Human Rights Act 1998.
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It is convenient at this point to make two observations. The first relates to the calculation of the period of lawful leave. Although the appellant’s leave expired before he made his most recent application for leave as a Tier 1 Entrepreneur on 11 May 2019, because he made that application within 14 days of the expiry of his leave, that period of overstaying fell to be disregarded for the purposes for his need to show, in an application for Tier 1 leave, that he was not in the United Kingdom “in breach of immigration laws” (see paragraphs 245DD(g) and paragraph 39E of the Statement of Changes in Immigration Rules, HC 395 (as amended)). Questions had arisen as to the extent to which a period of overstaying disregarded in this way impacted upon a person’s full record of the legality of presence in the United Kingdom. The fact that lead cases were to be heard by the Court of Appeal was the primary reason for Mostyn J’s grant of permission in the Judicial Review to which we referred at the beginning of this decision. The Court of Appeal gave its judgment on 22 October 2020: Hoque v SSHD [2020] EWCA Civ 1357. The “disregard” provisions of paragraph 39E do not apply to the requirement in paragraph 276B(i)(a) that the applicant have at least 10 years’ lawful residence in the United Kingdom. It is therefore clear that in the present case this point was correctly taken by the Secretary of State in relation to the application for leave to remain on the grounds of 10 years’ lawful residence: the appellant has not had 10 years lawful residence in the United Kingdom.
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In relation to another matter, the Secretary of State was clearly wrong. It is not the case that the whole of the appellant’s family is outside the United Kingdom. Following the death of a family member in 2018, the appellant’s wife and his two younger children went to Pakistan, where they remain. The appellant’s oldest child, SI, remained in the United Kingdom. (There is room for confusion, because the initials of another of the children are also SI, but we shall use “SI” to refer to the child who is in the United Kingdom). It is clear from what we have already said that the Secretary of State took no account of the position of SI. That is of some importance, because SI has health difficulties, of which there appears to have been evidence before the Secretary of State, and there is certainly evidence that has been adduced in the appeal process.
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The appellant appealed to the First-tier Tribunal. The grounds of appeal, as supplemented, and as considered by the First-tier Tribunal, raise three issues. The first is that which has now been disposed of by Hoque. The second is that the appellant’s application for leave to remain as a Tier 1 Entrepreneur (in relation to which the overstaying would fall to be disregarded) was still pending and awaited decision. The third head of the grounds related to SI’s condition and the consequences of his having to depart from the United Kingdom.
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At the hearing before the First-tier Tribunal there was no appearance by or on behalf of the respondent. Judge Birrell heard oral evidence from the appellant and took into account the documentary evidence adduced. Counsel for the appellant before her did in fact accept that the appellant could not meet the requirements of paragraph 276B(i)(a). In relation to the second ground, she referred to the decision of Mr Akhlaq Choudhury QC (as he then was) in R (Chaparadza) v SSHD [2017] EWHC 1209 (Admin). We shall discuss this case in some detail later in this decision. For the moment it suffices to say that Judge Birrell declined to follow Chaparadza on the ground that in reaching the conclusion that he had done in that case, Mr Chowdhury had not been referred to paragraph 34BB of the Immigration Rules. (We discuss this below at [12] ff.) Judge Birrell therefore decided that only the long residence application was before the Secretary of State, and that application had been correctly decided in accordance with the Rules.
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Judge Birrell then went on to look at the evidence outside the Rules. Her summary of the evidence before him was as follows:
“45. It is argued that returning to Pakistan would not be in the best interests of [SI]. I have read all of the medical evidence relating to him which is at AB 35-97: from Dr Cowling an associate specialist in Community Paediatrics, Catherine Himsworth a speech and language therapist, Lisa Henderson the co Ordinator of the paediatric cochlear implant programme, Dr Veronica Kennedy Consultant in Audio vestibular medicine and the most recent letter from Dr Cowling.
46. [SI] has Pendred syndrome which has caused profound sensori-neural hearing impairment. He has cochlear implants. In association with his hearing loss he has significantly impaired language and communication skills which impact on his learning, behaviour and general development (AB 35). He attends a specialist school for children with hearing impairment. I note that the cochlear implants are described as ‘highly technical and specialist pieces of equipment’ and that from the various organisations [SI] is receiving a high level of support.
47. It is argued by the Appellant that the necessary support and expertise to deal with the cochlear implants and to enable the [SI] to continue to improve in his speech and language development will not be available in Pakistan. I remind myself that the Appellant bears the burden of proof in this appeal. While the Appellant in evidence suggested that his wife had spoken to...
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