England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London WC2A 2LL
		23 October 2015

1. LORD JUSTICE AIKENS: This is a renewed application for permission to appeal from a decision of Upper Tribunal Judge Pinkerton given on 15 August 2014. The application follows the refusal to grant permission of Rafferty LJ on 25 February 2015.
2. The case concerns a citizen of Mauritius, who is the applicant. He was born on 28 April 1964. On 30 January 2013 solicitors acting on his behalf applied to the Secretary of State for indefinite leave to remain in the United Kingdom or for discretionary leave to remain in the United Kingdom for a further period of time, based on the applicant's established private life under Article 8 of the European Convention on Human Rights. That application was refused by a decision dated 21 June 2013 and an appeal was dismissed.
3. Subsequently the applicant sought permission to appeal that decision. The matter then came before Judge Pinkerton. Effectively the position was this: the applicant had entered the United Kingdom as a student on 28 July 2000. He was granted further periods of leave to remain as a student until 21 October 2006 and thereafter he was granted leave to remain under the Science and Engineering Scheme until 2 June 2007. On that date he made a further application to remain under what was then known as the Highly Skilled Migrant Programme, or HSMP.
4. Before the First Tier Tribunal, there was an issue as to whether or not that application was made in time. The First Tier Tribunal found that the application was not made prior to the expiration of the applicant's current leave to remain. Judge Pinkerton found that the First Tier Tribunal was wrong in concluding that the application was made after the expiration of the current leave of the applicant. Judge Pinkerton found that the application was made in time.
5. The application of 2 June 2007 was refused. As Judge Pinkerton records, it was not refused because the application was said to have been out of time, but because the applicant did not reach the HSMP qualifying criteria.
6. Thereafter, the applicant took advice and eventually he decided that he should leave the United Kingdom. Judge Pinkerton records at paragraph 11 of his judgment that the applicant voluntarily returned to Mauritius at some time in February 2008. I think the date that he finally left the UK was 17 February 2008. Judge Pinkerton records that at the time the applicant had stated that he had made it very clear to immigration officials that he had a pending application for a work permit and that he would be returning to the United Kingdom within some months. It does seem, however, that the HSMP application had by that time been refused.
7. Subsequently, whilst in Mauritius, the applicant made an application to return to the UK on the basis of being a student. That application was considered by the Entry Clearance Officer at the High Commission in Mauritius and it was rejected. That letter rejecting that application was not before Judge Pinkerton. However, the applicant this morning has given me a copy of that letter. It is clear from it that the reason why the ECO refused the application is that in the ECO's opinion the applicant would not comply with paragraphs 57(vi) and (vii) of the Immigration Rules.
8. Those Rules relate to the question of whether or not an applicant who was applying to enter or remain as a student would engage in business or take employment and whether or not the applicant would be able to meet the costs of the course and accommodation and maintenance without recourse to public funds. Effectively, the ECO concluded that the applicant would not be able to comply with those two provisions.
9. The applicant, upon receiving this rejection, reapplied, effectively, and it appears that the matter was reconsidered by an Entry Clearance Manager and the original decision of the ECO was withdrawn and a student visa was issued on 6 October 2008. There was nothing in writing which indicated why this change of mind had occurred, and there is no point in speculating why it was so. This morning, the applicant has effectively said that it is his suspicion that the original decision of refusal was made in bad faith. By this the applicant means, I think, that it would have been known to the ECO that a refusal would mean that time could go by and that there was a possibility that a six month period between the applicant leaving the UK and returning would go by, and that period of more than six months would prejudice any further application for permission to remain on the basis of long residence in the United Kingdom.
10. That is not something that I can accept, because there is simply no evidence one way or the other to found such a conclusion.
11. Thereafter, the applicant returned to the United Kingdom. Inevitably the lapse of time meant that there had been a break in the continuous residence in the UK for more than six months. It therefore meant, under the terms of the Immigration Rules, that the ten year residence period was not automatically fulfilled. However, there was, under the Rules, a discretion to consider whether or not, despite the gap of more than six months, the period in which the applicant had lived within the United Kingdom would be taken as a whole and therefore meet the ten year requirement.
12. The two issues which are said to arise on the proposed appeal are these: first of all, it is said that the real reason why the six month period was exceeded was because of an error on the part of the Entry Clearance Officer in Mauritius in refusing the initial application to return as a student for reasons which turned out to be wrong. It is said therefore that that is something that should have been taken into account when deciding whether or not to exercise the discretion under the rules to grant the leave, despite the fact that there had been a break in the ten year continuous residence requirements of more than six months.
13. The second issue that is raised is that it appears that in this case, when the decision was taken not to grant the leave to remain based on continuous residence, there was no reference by the caseworker of the matter to a senior caseworker. It is said that this is contrary to the provisions in the Guidance and that accordingly an error of law occurred. The wording in the modernised Guidance is that when the exercise of a discretion is made, "You must always discuss the use of discretion with a senior caseworker".
14. It is submitted that these two points raise important points of principle or practice or constitute some other compelling reason for the Court of Appeal to hear this case on what would be a second appeal.
15. I have considered this matter very carefully. I have come to the conclusion that this case does not fulfil either of the second appeal tests set out in CPR part 52.13(2)(a) and (b). The first point that is raised concerns fact. It does not raise a point of law or practice. The second point might raise a point of law if there was an argument as to the construction of the rules and that might be an important point. However, I am quite satisfied that the Upper Tribunal judge was correct in it his statement of the position at paragraph 17 of the judgment, where he says:

"The guidance indicated to me that only if a caseworker contemplates using his or her discretion that such a discussion will be required. Where discretion is not contemplated, then the point does not arise."

I agree with that construction.

16. Neither of the points in my view constitute "some other compelling reason" for the Court of Appeal to hear an appeal. This was a decision that was made on the facts. All relevant considerations were taken into account. Each of these matters, where there is more than a six month gap, is fact sensitive. It is not an issue of law and in my judgment it is not for the court to interfere too readily with the exercise of the decision making powers that are made by or on behalf of the Secretary of State in circumstances where there is inevitably a matter of judgment and discretion which has to be exercised.
17. Accordingly, I have to refuse permission to appeal in this case.