Upper Tribunal (Immigration and asylum chamber), 2021-06-21, HU/10653/2018
| Jurisdiction | UK Non-devolved |
| Date | 21 June 2021 |
| Published date | 07 July 2021 |
| Hearing Date | 02 June 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/10653/2018 |
Appeal Number: HU/10653/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10653/2018
THE IMMIGRATION ACTS
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Heard remotely via Teams |
Decision & Reasons Promulgated |
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On the 2nd June 2021 |
On the 21st June 2021 |
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Before
UPPER TRIBUNAL JUDGE LANE
Between
ABDUL HAMEED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Slatter
For the Respondent: Mr Whitwell, Senior Presenting Officer
DECISION AND REASONS
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By a decision promulgated on 11 March 2021, I found that the First-tier Tribunal had erred in law such that its decision should be set aside. My reasons were as follows:
“1. The appellant, a male citizen of Pakistan who was born on 17 April 1988, appeals against the decision of the First-tier Tribunal (Judge Alis) which was promulgated on 16 January 2020. The First-tier Tribunal dismissed the appellant’s appeal against a decision of the Secretary of State dated 24 April 2018 refusing the appellant’s application for leave to remain on the basis of long residence and private/family life. The hearing before Judge Alis had been necessary because the Upper Tribunal had set aside an earlier decision of the First-tier Tribunal (Judge Raikes).
2. The first ground of appeal concerns the status in the appeal before Judge Alis of the findings made by Judge Raikes. Judge Alis found that the Upper Tribunal (Judge Juss) had not preserved any of the findings made by Judge Raikes (the Upper Tribunal decision is silent as to whether any findings were preserved or set aside) and, consequently, all matters remained to determined de novo. Judge Raikes [15] had found that the appellant had not been dishonest providing different details of his income from self-employment to HMRC and, the same tax year (2010/2011), to the Secretary of State in support of a Tier 1 application. The judge had found that the Secretary of State had been wrong to refuse the appellant’s application for leave to remain under paragraph 322(5) and that the allegation of dishonesty had not been proved. The judge had gone on to dismiss the appeal under Article 8 ECHR. Judge Alis found that, as the decision of Judge Juss had said nothing about the preservation of findings or about the paragraph 322(5) issue, Judge Raikes’s finding that the appellant had not been dishonest had been set aside together with the rest of his decision. Judge Alis went on to find that the appellant had been dishonest.
3. I find that Judge Alis has erred in law. Mr Slatter, who appeared before the Upper Tribunal for the appellant, relied on the recent decision of the Upper Tribunal in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 00268 (IAC). At [41] the Upper Tribunal held:
“What the case law demonstrates is that, whilst it is relatively easy to articulate the principle that the findings of fact made by the First-tier Tribunal should be preserved, so far as those findings have not been “undermined” or “infected” by any “error or errors of law”, there is no hard-edged answer to what that means in practice, in any particular case. At one end of the spectrum lies the protection and human rights appeal, where a fact-finding failure by the First-tier Tribunal in respect of risk of serious harm on return to an individual’s country of nationality may have nothing to do with the Tribunal’s fact-finding in respect of the individual’s Article 8 ECHR private and family life in the United Kingdom (or vice versa). By contrast, a legal error in the task of assessing an individual’s overall credibility is, in general, likely to infect the conclusions as to credibility reached by the First-tier Tribunal.”
Before concluding that none of the findings of Judge Raikes had survived the setting aside of his decision, Judge Alis failed to consider whether any of those findings had or had not been ‘infected’ by errors of law. It would have been helpful and good practice if Judge Juss had expressly stated which, if any, of the First-tier Tribunal ‘s findings he had preserved but his silence on the issue did not mean that none of the findings remained. The line of authority identified by the Upper Tribunal in AB (in particular, the remarks of Lord Carnwath in HMRC v Pendragon plc [2015] 1 WLR 2838) indicates that only those findings which have been contaminated by error of law should fall with the decision. The reasons for this are obvious; it is potentially unfair for an appellant to be denied the benefit of favourable findings when these have not been challenged whilst the efficient administration of justice generally is promoted if parties can rely upon the issues between them being narrowed. In the instant appeal, it is wholly clear that Judge Raikes’s findings on the paragraph 322(5) issue were not only entirely discreet and unaffected by the error of law identified by Judge Juss but also that those findings had not been the discussed at all, let alone challenged, before the Upper Tribunal. Judge Juss had, unsurprisingly, focussed only on those issues which remained in contention. He had not, as Judge Alis states at [12], ‘simply remitted [the appeal] back to the [First-tier] Tribunal for fresh findings to be made … de novo on all issues.’
4. The second ground concerns the alleged failure of Judge Alis to apply the Secretary of State’s Long Residence Policy Version 8.0. The appellant had been found by the respondent to have failed to accrue 10 years’ continuous lawful residence and consequently had been refused leave to remain under paragraph 276B of HC 395 (as amended). Mr Bates, who appeared before the Upper Tribunal for the Secretary of State, relied on Hoque [2020] EWCA Civ 1357 as authority (which Mr Slatter acknowledged is binding on the Upper Tribunal) as to the correct interpretation of paragraph 276B. However, Mr Slatter sought, in effect, to bypass the issue of continuous lawful residence for 10 years (which I note different counsel before Judge Alis had accepted the appellant had not achieved (Alis at [31]). He submitted that the Court of Appeal in Hoque had accepted that the respondent’s own policy was more generous than the rule [39]:
“I should acknowledge in connection with the previous paragraph that there may be a question whether it is legitimate to refer to the Guidance as an aid to construction. At paras. 10-11 of his judgment in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48, Lord Brown disapproved the use of IDIs (the predecessor to Guidance documents) for this purpose; and para. 23 of the judgment of Dyson LJ in MD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 213 is to the same effect. At para. 15 (7) of its judgment in Masood Ahmed the Court referred to Lord Brown's observations in the context of this very issue. However at para. 42 of his judgment in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 Jackson LJ noted a qualification to that approach in cases where a rule is ambiguous and the Secretary of State has in her published guidance adopted the interpretation more favourable to applicants. The intended scope of element [C] is certainly ambiguous, given the mismatch between its terms and its placing within the paragraph, and the interpretation that I believe to be correct is more favourable to applicants. In any event, however, the terms of the Guidance are not essential to my conclusion.”
However, as he acknowledges in his skeleton argument [20], Mr Slatter was unable to say exactly why the Court of Appeal considered the policy more favourable to applicants than the rule. He submitted, correctly in my view, that, because the appellant had wrongly been refused on Article 8 ECHR grounds in part on account of a dishonesty which he had never perpetrated, he should, having succeeded in setting aside the First-tier Tribunal decision on Ground 1, be considered on the remaking of the decision on the basis that there existed no suitability grounds which should deny him leave. He relied on the decision of the Upper Tribunal in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351(IAC), in particular [47]:
“Although not immediately apparent, one way in which this kind of erroneous treatment of an individual can have a bearing on Article 8 proportionality is in an ensuing human rights appeal, as was envisaged by Underhill LJ. In such an appeal, the individual would be able to argue that, if the respondent had not formed the mistaken view of their conduct, he or she would have been given leave to remain; and that this should be given weight in the balancing exercise, comparably with how the Court of Appeal, in AA (Afghanistan) etc, spoke of the respondent taking account of past mistakes in deciding whether to exercise discretion in the individual's favour.”
Section 117B of the 2002 Act (as amended) provides that ‘the maintenance of effective immigration controls is in the public interest’ in all cases involving Article 8 ECHR. Mr Slatter submitted that that public interest was diminished; it matters not whether the injustice he has suffered is characterised as ‘historic’ or ‘historical’ (see Patel). In the words of the counsel (Mr Aslam) who had appeared before Judge Alis, ‘it...
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