Upper Tribunal (Immigration and asylum chamber), 2023-05-25, IA/00104/2021
| Appeal Number | IA/00104/2021 |
| Hearing Date | 17 May 2023 |
| Date | 25 May 2023 |
| Published date | 09 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001408 [HU/50473/2020]
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001408 First-tier Tribunal No: HU/50473/2020 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 25 May 2023
Before
UPPER TRIBUNAL JUDGE SMITH
Between
SHAUKAT ALI
(NO ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Decision made on the papers
pursuant to paragraph 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008
DECISION AND REASONS
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By a decision promulgated on 8 February 2023 (“the Decision”), the Upper Tribunal (UTJ Smith and DUTJ Chapman) found there to be an error of law in the decision of First-tier Tribunal Judge Graves dated 24 November 2021 allowing the Appellant’s appeal. The Tribunal’s decision is appended hereto for ease of reference.
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Although we raised some concerns in the Decision regarding the Tribunal’s jurisdiction to decide the appeal (as set out at [18] to [26] of the Decision), we concluded at [26] of the Decision that there was a valid appeal before us. We concluded however, for reasons set out at [27] to [39] of the Decision that Judge Graves had made an error in her assessment under Article 8 ECHR. We also concluded at [59] of the Decision that the Judge had made errors in her calculation of the Appellant’s period of lawful residence for the reasons set out at [40] to [58] of the Decision. We then considered whether such errors were material given the period of lawful residence which the Appellant had enjoyed by the time of the hearing before us. We concluded however that the Appellant had not quite reached the ten years’ point at that stage.
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We indicated to the parties however that it might be a waste of judicial resources for there to be a further hearing to re-make the decision given our calculation of the period of the Appellant’s lawful residence which fell short of ten years by only a matter of days. We invited submissions in that regard.
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Neither party made submissions in accordance with the directions given. However, following an email sent by the Tribunal office on 5 May 2023, the Respondent filed written submissions on 12 May 2023. Those submissions read as follows:
“The SSHD writes further to the UT’s error of law decision/directions dated 8/2/23 and the SSHD’s application of 9/5/23 to vary the Tribunal’s directions so as to allow her to submit written submissions by 4pm 12/5/23.
After careful analysis of the EOL decision, the SSHD acknowledges and agrees with the UT’s findings @61 in relation to the Appellant’s accrual of continuous lawful residence, which the SSHD now calculates as:
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26/3/10 – 25/4/17 (leave under the immigration rules until conclusion of administrative review, 7 years and 30 days)
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21/12/8 – 3/4/22 (immigration bail and leave under the immigration rules, 3 years and 103 days)
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4/4/22 – 12/5/23 (3C leave continuing, 1 year and 38 days)
Total: 11 years and 171 days as of today’s date.
The SSHD acknowledges that the singular issue taken in the RFRL (dated 16/9/20), in respect of 276B, was that the 10 years continuous lawful residence requirement was not met. The SSHD now accepts, in the light of the UT’s findings, that the Appellant has accrued 10 years continuous lawful residence and as such 276B is met.
Having due regard to TZ [2018] EWCA Civ 1109, the SSHD agrees with the UT’s sentiment @63 that ‘given our conclusions on the Paragraph 276B issue, it may be thought to be a waste of judicial resources for the decision in this appeal to be re-made’.
However, in circumstances where the UT have found a material error of law in the FTT determination (@62), the SSHD respectfully invites the Tribunal to remake the decision of the First Tier Tribunal without a further hearing and allow the Appellant’s appeal under Article 8.”
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In general, the making of a decision on the papers under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 requires an opportunity to be given to both parties as to that course. However, in circumstances where the Respondent accepts that the Appellant’s appeal should now be allowed, I have decided that it is appropriate to make that decision now without awaiting a response from the Appellant. It is in his interests that the appeal is determined as swiftly as possible and there is little point in him incurring the legal costs of making submissions when the decision is in his favour.
NOTICE OF DECISION
The decision of First-tier Tribunal Judge Graves dated 24 November 2021, having been found by the Tribunal on 17 January 2023 to contain errors of law, is hereby set aside.
The decision is re-made allowing the Appellant’s appeal.
The Respondent’s decision breaches section 6 Human Rights Act 1998. The Appellant’s appeal is therefore allowed on human rights grounds (Article 8 ECHR).
L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
17 May 2023
APPENDIX: ERROR OF LAW DECISION
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001408 |
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First-tier Tribunal No: HU/50473/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
………8 February 2023
Before
UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SHAUKAT ALI
Respondent
Representation:
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr A Rehman, Counsel instructed by Yes UK Immigration Ltd
Heard at Field House on 9 January 2023
DECISION AND DIRECTIONS
BACKGROUND
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This is an appeal by the Secretary of State. For ease of reference, we refer to the parties as they were in the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge H Graves dated 24 November 2021 (“the Decision”) allowing the Appellant’s appeal against the Respondent’s decision dated 16 September 2020 refusing his human rights claim (Article 8 ECHR). The claim was made in the context of an application for indefinite leave to remain (“ILR”) based on the Appellant claiming to have been in the UK lawfully for a continuous period of ten years. The application was therefore made and refused applying paragraph 276B of the Immigration Rules (“Paragraph 276B”). The Respondent did not accept that the Appellant had been in the UK lawfully for the requisite period due to gaps in his leave.
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The Appellant is a national of Pakistan. Although the Appellant’s immigration history is somewhat complex, it suffices for current purposes to set out a brief account of it. He came to the UK as a student on 26 March 2010. His leave was extended in that category and as a Tier 1 and then Tier 2 migrant to 29 December 2016.
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The Appellant made an application for further leave in time on 26 December 2016 as a Tier 1 (entrepreneur). That application (“the First Application”) was refused on 14 March 2017. That refusal was maintained following an administrative review on 25 April 2017. The Appellant’s leave to remain came to an end on that date.
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The Appellant applied again as a Tier 1 migrant on 10 May 2017 (“the Second Application”). The Appellant was by then an overstayer. However, it appears to be accepted by the parties that he made the application within 14 days from the end of his leave (although by our calculation the period was 15 days). Accordingly, paragraph 39E of the Immigration Rules (“Paragraph 39E”) applies. Accordingly, the Judge accepted that under Paragraph 276B, the period of overstaying on that occasion fell to be disregarded. The Second Application was refused on 13 August 2018 and re-served on 30 October 2018. The decision refusing the Second Application was maintained on 7 December 2018 following administrative review. The Appellant was at that time served with an enforcement notice and placed on immigration bail.
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The Appellant then applied again as a Tier 1 migrant on 21 December 2018 (“the Third Application”). He was interviewed in relation to that application and granted leave valid to 3 April 2022. He applied for ILR on 15 May 2020.
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The Respondent relied in her refusal on there being a gap in the Appellant’s leave between 26 April 2017 and 2 April 2019. The Respondent treated the application as a human rights claim and refused it on the basis that it would not be disproportionate to remove the Appellant and his family (wife and son now aged two years) to Pakistan.
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At [12] of the Decision, the Judge pointed out that the Appellant was not facing removal as he still had leave to remain as a Tier 1 migrant to 3 April 2022 (the hearing was on 5 November 2021). She there took the view that she should “consider the appeal on the basis of the proportionality of the impact of refusal of ILR rather than the impact of removal”. She there records that both parties agreed with that approach.
At [25] of the Decision, the Judge considered the difference in...
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