Upper Tribunal (Immigration and asylum chamber), 2021-10-14, HU/06222/2020 & HU/03797/2020
| Jurisdiction | UK Non-devolved |
| Date | 14 October 2021 |
| Published date | 29 October 2021 |
| Hearing Date | 14 September 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/06222/2020 & HU/03797/2020 |
Appeal Number: HU/006222/2020 and HU/03797/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06222/2020
HU/03797/2020
THE IMMIGRATION ACTS
|
Heard at Manchester CJC (via Microsoft teams) |
Decision & Reasons Promulgated |
|
On 14 September 2021 |
On 14 October 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
FAISAL HUSSAIN
RABBIA FAISAL
(Anonymity direction not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent’s
Representation:
For the Appellant: Mr Parkin instructed by Rayan Adams Solicitors
For the Respondent: Ms Isherwood a Senior Home Office Presenting Officer.
DECISION AND REASONS
-
The appellants appeal with permission a decision of First-tier Tribunal Judge Lodato (‘the Judge’) which dismissed their appeals against the respondent’s decisions of 27 February 2020 and 23 June 2020 to refuse their applications for leave to remain in the United Kingdom on the basis of their private life, long residence, the best interests of their children, and what are said to be very significant obstacles to their integration into Pakistan.
Background
-
The first appellant was born on 15 February 1980, and his wife, the second appellant, on 22 October 1983.
-
Having had the benefit of considering the documentary and oral evidence the Judge sets out findings of fact from [37] of the decision under challenge.
-
The Judge correctly adopts a structured approach to assessing the merits of the appeals as per the Razgar guidelines - see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 at [17]. The Judge does not dispute that due to the length of time the appellants have been in the United Kingdom, the ties that have been developed by them and their eldest child, and the consequences of the decision, that Article 8 ECHR is engaged.
-
In relation to the third of the Razgar questions the Judge writes:
42. The primary argument advanced on behalf of the first appellant, and adopted by his wife, the second appellant, was that the respondent was bound by policy to exercise discretion in favour of granting the most recent application for leave to remain. This was the almost exclusive focus of both skeleton arguments and much of the oral arguments advanced during the hearing. It was conceded in Mr Hussein’s skeleton argument that he did not satisfy the requirements of paragraphs 276B of the Immigration Rules as he had not accumulated 10 years continuous lawful residence in the UK before taking into account the period of time which followed the most recent application for leave, which was not an application to vary extending leave. It was argued that the policy document, Long Residence, allow for no other decision than to grant discretionary leave. Upon my reading of the section of this policy relied upon, it simply does not bear the weight that has been placed upon it. On the contrary, the detailed analysis of this complex set of provisions in Hoque suggests quite the opposite purposive interpretation. At paragraph 50 of the judgement, the underlying policy considerations were identified which informed the court’s interpretation that paragraph 276B(v) could not be regarded as qualifying the primary 10-year period of 276B(i)(a). The danger identified was that, after a lawful period of leave had drawn to a close, an unmeritorious application for leave could artificially allow the clock to continue ticking until the 10-year point was reached. This will permit the deployment of procedural gamesmanship to ensure that the 10-year point could be reached irrespective of the underlying substance of the application which was under consideration when 10 years residency was reached.
43. I find it to be impossible to reconcile the appellant’s arguments about the purpose lying behind the respondent’s policy with the findings in Hoque. To follow the appellant’s suggested approach would unpick the clear interpretation of the Court of Appeal which post-dated the policy relied upon. The effect would be to introduce a qualifier to the first requirement of paragraph 276B by strained and unwarranted interpretation of policy. This analysis is consistent with s. 117B(4) of the 2002 Act that little weight should be afforded to a private life established at a time when the person is in the UK unlawfully or precariously. The appellants cannot succeed by reference to paragraph 276B, nor on the policy of Long Residence.
-
The grounds of appeal assert certain of the Judge’s findings at [42 – 43] are inconsistent with the authority of the Court of Appeal in Hoque [2020] EWCA Civ 1357.
-
Permission to appeal was granted by another judge of the First-tier Tribunal on 12 May 2021 on the basis that judge was satisfied there was an arguable error of law in that the Judge may have misapplied the decision in Hoque.
-
The Secretary of State has filed a Rule 24 response dated 18 June 2021 in the following terms:
Re: Secretary of State’s response to the grounds of appeal under Rule 24. Mr Faisal Hussain Faisal Pakistan 15 February 1980 & Rabbia Faisal Pakistan 22 October 1983
-
The respondent to this appeal is the Secretary of State for the Home Department. Documents relating to this appeal should be sent to the Secretary of State for the Home Department, at the above address.
-
The respondent opposes the appellant’s appeal.
-
You are invited to note that Appellants accept they cannot succeed under the terms of the extant Immigration Rule applied (e.g. he does not have ten years continuous lawful residence for the purposes of 276B of the Rules). Equally, you are invited to note that the Appellants do not challenge the FtTJ’s wider adverse findings on either their family or private lives under Article 8 of the ECHR.
-
Accordingly, the scope of the ground as far as can be discerned, appears to be a challenge to the FtTJ’s findings at [42]-[43] relating to third question in Razgar, namely whether the Respondent’s decision was in accordance with the law (e.g. failing to take into account the policy guidance ‘Long Residence v.16’, which was the relevant policy in existence between 28th October 2019 and 10 May 2021) and argue that some form of Discretionary Leave be afforded to the Appellants.
-
The Respondent can only go so far in her response given: -
-
The absence in her possession of the Appellant’s skeleton argument, noting she was not represented before the FtT(IAC) in Bradford; and
-
The grounds as pleaded primarily take issue with the Respondent’s decisions of 27th February 2020 and 23rd June 2020 rather than particularise why the FtTJ has materially erred in law other than to say the FtTJ didn’t apply binding authority in the form of Hoque & Ors v Secretary of State for the Home Department [2020] EWCA Civ 1357.
-
-
It is submitted the grounds are misconceived.
-
It appears to be common ground that the Appellant had remained lawfully in the United Kingdom from entry on 9th September until 13th November 2018 when the Appellant’s administrative review of the decision 2nd October 2018 was completed (e.g. approx. nine years and two months). Since then the Appellant’s have remained ‘open-ended’ overtstayers to use the terminology from Hoque (Supra).
-
It is submitted that the grounds are selective in their quoting of Hoque (Supra) and do not distinguish between open-ended and book-ended overstaying, with the passage relied upon at §35 applying only to the latter not the former, you are invited to consider §103 of the concurring judgement of Dingemans LJ, which the FtTJ alludes to at [42].
-
Furthermore, it is submitted that the Appellant’s grounds have largely been disposed of in R (on the application of Waseem & Others) v Secretary of State for the Home Department (long residence policy – interpretation) [2021] UKUT 0142 (IAC) in respect of the ambit of the policy: -
“230. In summary, an analysis of the various versions of the long residence policy and its earlier incarnation of the long residence concession supports the respondent’s contention that the core attribute of the 10 year route has always been the requirement to have 10 years’ continuous lawful residence. Paragraph 39E and predecessor provisions are a separate issue, relating to the effect on continuity of residence of out of time applications. To conflate that limited concession, so that residence ‘of any other legality’ is treated the same as continuous lawful residence, would undermine the very basis of the 10 year route. The timeliness of repeated applications, categorised as a commitment to attempt to comply with the Rules and as demonstrating ties to the UK, ignores the enduring purpose of the 10 year route, which is to recognise those who have acquired 10 years’ continuous lawful residence.
231. While...
To continue reading
Request your trial