(Immigration and Asylum Chamber) Appeal Number: IA/04029/2013
THE IMMIGRATION ACTS
Heard at Field House
on 22nd October 2013
On 5th November 2013
UPPER TRIBUNAL JUDGE HANSON
ADERIMI OLUROTIMI OYEKANMI
BOLANLE CECELIA OYEKANMI
FIJAFOLUWA PEYEMI OYEKANMI
TOLUWANI AJOKE OYEKANMI
For the Appellant: Ms S Iqbal instructed by Maliks and Khan Solicitors.
For the Respondent: Mr Avery – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge Griffiths promulgated on 15th July 2013 following a hearing at Taylor House on 28th June 2013, in which the Judge dismissed the appeal, under both the Immigration Rules and Article 8 ECHR, against the refusal of the Secretary of State to grant the appellants’ application for indefinite leave to remain in the United Kingdom.
2. The appellants’ are a family unit. The first appellant was granted entry clearance on 16th November 2007 to enter the United Kingdom as a highly skilled migrant although his date of entry was 3rd March 2008. His leave was subsequently renewed with his last grant of leave as a Tier 1 (General) Migrant being valid until 16th November 2012. The remaining appellants, his wife and children, joined him in the United Kingdom on 31st August 2009.
3. All appellants’ are citizens of Nigeria whose respective dates of birth are 14th October 1964, 19th September 1974, 21st October 2003, and 28th April 2007. The second, third, and fourth appellant's are dependent upon the first appellant succeeding and so I shall focus initially on his appeal.
4. Judge Griffiths found that the application was premature as rule 245CD requires an applicant to have spent a continuous period of five years lawfully in the United Kingdom in order to qualify for indefinite leave to remain (ILR) as a Tier 1 (General) Migrant. It was noted the first appellant arrived in the United Kingdom on 3rd March 2008 and applied for ILR on 18th October 2012, which was received on 25th October 2012. The Judge found that when the appellant made his application he was unable to meet the requirements of the Rules because he had not been in the United Kingdom for five years.
5. Judge Griffiths found the claim the appellant had been given an assurance by an unnamed person within UKBA not determinative as no such assurance could have been given and there was no evidence to corroborate the appellant’s account .
6. It is said the appellant did not pursue an Article 8 ECHR claim although Judge Griffiths considered this in any event  and found the decision to be proportionate.
7. Permission to appeal was initially refused by the First-tier Tribunal but granted on a renewed application by the Upper Tribunal.
8. The relevant provisions are paragraph 245CD of the Immigration Rules. paragraph 245CD is to be found within part 6 of the Rules which is that relating to the Points-Based System and which provides:
245CD. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) Unless the application is being made under the terms set out in Appendix S, the applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:
(i) as a Tier 1 (General) Migrant,
(ii) as a Highly Skilled Migrant,
(iii) as a Work Permit Holder,
(iv) as an innovator,
(v) as a Self-Employed Lawyer,
(vi) as a Writer, Composer or Artist,
(vii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant, or
(viii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or as a Work Permit Holder where the work permit was granted because the applicant was the subject of an Intra-Company Transfer.
9. The appellant also relies upon Section 3C of the Immigration Act 1971 which provides:
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
10. The chronology is not disputed but it is alleged the Judge erred in law by failing to consider section 3C when assessing whether the appellant had spent a continuous period of five years lawfully in the United Kingdom.
11. This is an appeal under section 82 Nationality, Immigration and Asylum Act 2002. The grounds of appeal only seek to rely upon two grounds, section 84 (1)(f), that a discretion under the Rules should have been exercised differently, and 84 (1)(c), a decision incompatible with his right under ECHR.
12. It is necessary with regard to s 84 (1)(f) to identify the nature of the discretion in question. In relation to non mandatory refusals under paragraph 320 the inclusion of the wording “normally be refused’ connotes a discretion to be exercised by the decision maker. The wording of paragraph 245CD contains no such wording. The PBS, of which this rule forms part is based upon a philosophy that entitlement to enter and remain in the United Kingdom should be assessed by reference to objectively verifiable criteria. Whether a person is entitled to the grant of leave they seek is dependant upon them proving they are so entitled. It is a very detailed and highly prescriptive system as recognised by the Court of appeal in Alam  EWCA Civ 960.
13. Guidance to case workers is to be found in Chapter 6A of the IDI (current version dated 28th October 2013) which states:
General Requirements for indefinite leave to remain as a Tier 1 Migrant
Applicants must meet all of the relevant requirements set out in the Immigration Rules to qualify for indefinite leave to remain. In addition to the individual requirements of each migration category within Tier 1 of the Points Based System, applicants are required to meet the general requirements set out in sections 3-5 below.
14. In the document entitled ‘Indefinite Leave to Remain – Calculating Continuous Period in UK, This guidance is based on the Immigration Rules, 28th August 2013’ it is stated:
“Indefinite leave to remain (ILR) must be refused if the applicant does not meet the continuous period requirement set out in the Immigration Rules.
The Secretary of State considers the granting of ILR in the UK to be a privilege and the continuous period requirement is the minimum amount of time which a migrant must spend in employment or being economically active in the UK before being eligible to qualify for ILR.”
15. The Secretary of State retains discretion under the Immigration Act 1971 to grant leave outside the Rules in exceptional cases, however, the appellant has not proved that the facts of this case fit within any of the exceptions identified on which the exercise of a discretion is required. No error is proved in relation to the pleaded ground under the Immigration Rules.
16. Judge Griffiths, however, considered the appeal on its merits as if a section 84 (1) (a) appeal which is not raised as an issue before me. The finding the appellant is unable to satisfy the requirements of the Rule by reference to the period that has elapsed since the date of the original grant of leave is legally correct as the wording of the rule is clear and requires the requisite period to begin when the applicant is "in the United Kingdom". Time therefore runs from 3rd March 2008.
17. In the case of QI v SSHD  EWCA Civ 614 the Court of Appeal were considering whether the wording of paragraph 245ZX (i), as it was then, prevented an appellant from relying upon statutorily extended leave. They found that the wording of the rule did not although the current version which came into force on 21st April 2001 does prevent reliance upon statutorily extended leave as a result of the inclusion of the words "granted under these rules" to the appellants current leave to remain. The current wording of 245CD only requires a continuous period of five years lawful residence in the United Kingdom in which the most recent period must have been spent with leave as a Tier 1 (General) Migrant. There was discussion during the course of the hearing as to whether the requirement for the most recent period to have been spent with leave as a Tier 1 (General) Migrant prevented the appellant from relying upon the statutorily extended leave under section 3C. The effect of section 3C is that the leave lawfully granted continues and is the same leave, not different leave, as recognised by the Court of Appeal in QI, paragraphs 13 to 15.
18. I find there is no restriction preventing reliance on statutorily extended leave in the current wording of paragraph 245CD and if the respondent wishes to exclude such leave an amendment to the rule will be required, similar to that in 245ZX (i).
19. In relation to the relevant time at which the question of an individuals ability to meet the rules has to be considered, in AQ (Pakistan) v Secretary of State for the Home Department  EWCA Civ 833 the Court of Appeal held that, unless the rule specifies a fixed historic timeline (i.e. one that clearly required something to have happened by the date of application) the task of the Tribunal was to consider the position as at the date of the Secretary of State’s decision , not as at the date of the application as earlier case law had established and as section 85A now requires. Section 85 of the 2002 Act set out the Tribunal’s duties when considering an appeal under s. 82(1) and the Claimant had made a statement under s. 120. For the purposes of s. 85(2) the word “decision” clearly meant the decision of the Secretary of State.
20. The appellant made his application on 18th October 2012 when he had only been in the United Kingdom for four years and seven months. His grant of leave would have expired on 16th November 2012 but such leave has continued as a result of the operation of section 3C. At the date of the refusal, 11th January 2013, the appellant had four years ten months continuous lawful residence and by the date of the hearing he had five years three months lawful residence.
21. The appellant did not seek to rely on any further evidence demonstrating that the requirements of the Rules were met at the date of the hearing but relies solely on the actual or further leave since the date of decision, and so is not caught by section 85A which applied to Points Based System cases and restricts the admissibility of evidence.
22. Had it been proved that the appellant was advised that his application would be delayed until he had acquired five years lawful residence there may be an argument based upon the common law duty of fairness/legitimate expectation that the decision made outside this period is unfair and ‘not in accordance with the law‘, although I find no error in the Judge's treatment of this particular allegation and no legal error is proved in this respect.
23. If the date at which the appellant is able to satisfy the requirements of the Rules is limited to the date of application the appellant must fail. If it is limited to the date of decision as there is no timeline specified in the rule itself, the appeal must still fail as the appellant did not have five years lawful residence even with the effect of paragraph 3C. It is only if the Tribunal were considering the position at the date of the hearing that the appellant will have five years continuous lawful residence as a result of the operation of the statutory extension of his leave. His case is that by showing he would have been granted leave if he made the same application on the date of the hearing, he would have succeeded.
24. Mr Blundell in his grounds seeking permission to appeal to the Upper Tribunal drew an analogy between this case and finding of the Tribunal in YZ and LX  UKAIT 00157 in which an appellant succeeded under paragraph 317 after turning 65 during the course of the appeal. In that case Mr Blundell, in his previous life as a Senior Home Office Presenting Officer, appeared on behalf of the Secretary of State. The determination was reported to provide further guidance as to the effect on section 85(4) of the Nationality, Immigration and Asylum Act 2002 in relation to changes of circumstances occurring after the date of the Secretary of State's decision, but prior to the date of hearing before an Immigration Judge.
25. Section 85(4) provides that on an appeal under Section 82(1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of decision. In YZ the Tribunal stated:
13. Mr Blundell argued that Section 85(4) of the 2002 Act was intended to cover the situation where an appellant, whose application had failed at the date of decision because, for example, he could not satisfy the maintenance or accommodation requirements for leave to remain at that date, was able to show that the position had changed by the date of hearing, and that he was then able to satisfy the same requirement. The distinction which he sought to draw was between, on the one hand, a case in which, at the date of the hearing, an appellant was able to satisfy the requirements for leave to remain under precisely the same provisions in the Immigration Rules on which he had based his application originally (when Section 85(4) could properly be prayed in aid), and, on the other hand, a case in which, at the date of the hearing, an appellant was seeking to rely on a different part of the Immigration Rules which he was then able to satisfy, even though he had not been able to do so at the date of decision (when Section 85(4) was not applicable).
14. We acknowledge the ingenious nature of the argument advanced by Mr Blundell on the respondent's behalf. However, we are not persuaded by it. Mr Blundell is seeking to introduce a distinction for which we see no justification, either in the wording of Section 85(4), or in the Immigration Rules themselves.
15. The appellants applied for leave to remain in the United Kingdom as dependent relatives under paragraph 317 of the Immigration Rules. They still seek leave to remain as dependent relatives under the same paragraph. The fact that, as at the date of decision, their applications fell to be rejected under paragraph 317(i)(e), but now fall within the ambit of paragraph 317(i)(c) of the same paragraph, does not change the substance of their application, which remains one for leave to remain as dependent relatives.
16. The appellants' reliance on paragraph 317(i)(c), because the first appellant is now over 65, rather than paragraph 317(i)(e), does not constitute an attempt by an appellant who has applied, and failed, under one category in the Immigration Rules, e.g. as a student, to succeed on appeal under an entirely different category, e.g. as a spouse, merely because by the latter date he happens to be able to satisfy the requirements for leave to remain on an entirely different basis. That is not an issue which is before us, and is therefore not one on which we consider it appropriate to express an opinion in the absence of full argument on both sides.
17. The central fact in the case of the appeals before us is that the appellants applied for leave to remain as dependent relatives. They were refused on that basis. By the date of the hearing by the Adjudicator, the circumstances of the first appellant had changed, albeit only as a consequence of the inevitable effect of the passage of time upon his age, and the appellants were then able to satisfy the requirements for leave to remain on the same basis as that on which they had applied originally, namely as dependent relatives. Under Section 85(4), they are entitled to rely upon that change as constituting a "matter" which was "relevant to the substance of the decision" and which had arisen "after the date of the decision".
18. We are therefore satisfied that the Adjudicator made a material error of law in failing to give proper effect to the provisions of Section 85(4). In consequence, it now falls to us to substitute our own decision based on the undisputed facts of the appeals before us.
19. Mr Blundell did not seek to argue that the appellants were not able to satisfy all the requirements of paragraph 317 by reference to paragraph 317(i)(c) as at the date of the hearing before the Adjudicator, or at the date of the hearing before us. He was plainly right to do so. In the circumstances, both appellants are entitled to succeed.
26. It was not argued before me that the First-tier Tribunal were limited to considering the situation only appertaining at the date of application or decision as Mr Avery’s submissions related to the fact the wording of the rule excluded consideration of leave under section 3C.
27. As the rule does not exclude the application of statutorily extended leave, and in accordance with the provisions of section 85 (4) the first appellant must be entitled to rely upon the fact that at the date of the hearing he had a continuous period of five years lawful leave as constituting a matter which was relevant to the substance of the decision which had arisen after the date of decision. Accordingly I find that Judge Griffiths has materially erred in law in dismissing the appeal under the Immigration Rules.
28. The appellant also relied on Article 8 ECHR but the findings made by the Judge in relation to the private life the appellants have in the United Kingdom are within the range of those the Judge was entitled to make on the evidence in light of the fact the first appellant was unable to satisfy the requirements of the Immigration Rules.
29. I set the determinations aside and remake the decision by allowing the appeal of the first appellant under the Immigration Rules and that of the remaining appellants as dependents in line.
30. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.
31. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make no such order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008) as no application for anonymity was made and is not warranted on the facts of this appeal.
Note: this is not part of the determination.
32. In the light of my decision to re-make the decision in the appeal by allowing it, I have considered whether to make a fee award (rule 23A (costs) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007).
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The application was premature and the respondent entitled to reject it on the facts.
Upper Tribunal Judge Hanson
Dated the 1st November 2013