(Immigration and Asylum Chamber) Appeal Number: IA/11485/2013
THE IMMIGRATION ACTS
Heard at Field House
On 8 October 2013
On 20 December 2013
UPPER TRIBUNAL JUDGE FREEMAN
UPPER TRIBUNAL JUDGE CLIVE LANE
TIMOTHY richard WINEY
For the Appellant: Mr D Bazini, instructed by Gulbenkian Andonian, Solicitors
For the Respondent: Mr P Deller, a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, Timothy Richard Winey, was born on 3 August 1966 and is a male citizen of the United States of America. He was initially granted leave to enter the United Kingdom on 28 August 1999 as an Armed Forces Member not exempt from immigration control. His leave was subsequently extended upon application until 24 August 2016. On 8 April 2013, a decision was made to curtail the appellant’s leave as at that date. The respondent had received, on 26 February 2013, a letter from the appellant’s employers (US Department of Defense) indicating that the appellant had been dismissed from employment on 16 September 2011. The appellant appealed against that decision to the First-tier Tribunal (Judge Stott) which, in a determination promulgated on 27 June 2013, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. This was a “paper” appeal before the First-tier Tribunal. Although the appellant now has the assistance provided by legal representatives, he acted in person in his appeal to the First-tier Tribunal. His grounds of appeal read as follows:
“In paragraph 2 of the decision it states that I was granted leave until 24 August 2016. In paragraph 3 it states that I was dismissed from my employment on 16 September 2011. What the Department of Defense failed to mention was that my dismissal was fraudulent, that I had effectively resigned several months prior due to the criminal retaliation I suffered at work, retaliation resulting in my permanent disability (I am now medically retired), I wrote the Home Office extensively about my mistreatment and had been seeking the extradition of my tormentors for 2 years now. I only raise these points to provide some background about why I remain in the UK and to clarify how I became separated from my employment with the Department of Defense. I am appealing the decision on the grounds that I am an EU citizen (Portuguese), my wife and son are also EU citizens, we have been and continue to be, model residents who are financially self-sufficient. My son is studying mechanical engineering (on scholarship) at Newcastle University; I have recently been accepted on a Masters programme in Psychology at Goldsmiths, and we deeply love our adopted country, which we have made our home by choice.”
3. Responding to the grant of permission under Rule 24, the respondent wrote:
“It is clear that the appeal was based on paper evidence. The appellant did not appear to make good his subsequent claim. His nationality all along was divulged as being a citizen of USA, and furthermore it is also not clear from the papers that he included in the grounds he submitted against the Secretary of State’s decision that he is entitled to remain in the UK on the basis of long residence. It is submitted that it is open for the appellant to make the appropriate applications to the Secretary of State anytime with the relevant evidence. This would enable the evidence to be appropriately scrutinised and facilitate a relevant decision to be made.”
4. We shall deal with the grounds of appeal in the order in which they appear in the application for permission.
5. The appellant asserts that the First-tier Tribunal erred in law by failing to engage with the appellant’s claim in his grounds of appeal that he is a Portuguese citizen. On the papers before the First-tier Tribunal were photocopies of a Portuguese identity card and passport both showing the photograph of the appellant bearing his name and date of birth
6. Dismissing the appeal, Judge Stott wrote:
“The appellant has provided material clearly indicating his dissatisfaction with the manner in which he has been treated [by his employers] and the reasons, in his opinion, for that course of action against him. The respondent however has received clear notification of his dismissal from the service and consequently due to the fundamental change in the appellant’s situation I find that he no longer has leave in his current capacity to remain in the United Kingdom and that the respondent’s curtailment of his leave was justified.”
7. Judge Stott made no mention of the appellant’s claim to be an EU citizen nor does he refer to the identity card or passport. We find that the judge should have engaged with the appellant’s grounds of appeal. The immigration decision which was served on the appellant on 10 April 2013 told him that he “must now inform us of any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here and any grounds where you should not be removed or required to leave”. The appellant did exactly that in his grounds of appeal. This was not a case in which the appellant sought to raise entirely new grounds for remaining in the United Kingdom having submitted an application for leave to remain which the respondent had rejected; the appellant believed that he had leave through until 2016. We are sure that the respondent’s decision to curtail that leave came as a surprise to him. We consider also that the judge should have had regard to AS (Afghanistan)  EWCA Civ 1076. At , the Court of Appeal held:
“ If the interpretation of section 85(2) put forward by the appellants were invariably at odds with the provisions of section 3C(4) Mr. Beer's argument would have more force, but section 3C(4) only applies to those whose existing leave to enter or remain is extended by statute and has no application to those who make their applications well before their existing leave expires. More important, however, is the fact that the service of a notice under section 120 is entirely in the option of the Secretary of State. He can choose not to serve a notice, in which case the appellant who falls within section 3C(4) is restricted to the scope of his original application. If, however, the Secretary of State chooses to serve a notice under section 120, he invites and requires the appellant to put forward any additional grounds that may be available to him. I do not think that section 3C(4) of the 1971 Act is inconsistent with the appellants' interpretation of section 85: taken as a whole the statutory scheme gives the Secretary of State the power either to rely on the restrictive effect of section 3C(4), with the prospect of further proceedings at a later date, or to ensure that grounds for seeking the same relief that would otherwise have to be pursued in those further proceedings can be swept up into, and considered as part of, the existing proceedings.”
8. Having found the judge had erred in law by failing to consider an issue raised in the grounds of appeal, it was considered whether the error is such that the determination of the First-tier Tribunal falls to be set aside. We found that it does not. We have borne in mind that Judge Stott did not have the advantage of hearing oral evidence or legal argument. All that he had before him was the appellant’s assertion in the grounds of appeal that he was an EU citizen together with an identity card and a passport for which no interpretation had been provided by the appellant. He had no evidence whatever to support the appellant’s assertion that he and his family were “financially self-sufficient” beyond what the appellant said in the notice of appeal and the same is true of the appellant’s assertion that he and his son were students. Had Judge Stott considered the appellant’s claim to be a Portuguese citizen, we find that he would not have allowed the appeal on that basis since there was no evidence to justify doing so.
The Immigration Rules: Long Residence
9. Mr Bazini submitted that by August 2009, the appellant had completed ten years of lawful residence in the United Kingdom. He submitted that the judge had erred by failing to consider the appeal on that basis. We reject that submission. Whilst the appellant had clearly asserted that he was a Portuguese citizen, he did not tell the First-tier Tribunal in his notice of appeal that he sought to remain in the United Kingdom on the basis of long residence. He makes reference to “permanent resident status” in his application for the Tribunal to make an anonymity order. We consider that statement to refer to his claimed Portuguese citizenship rather than to long residence. It was open to the appellant to make an application to the respondent to remain on the basis of long residence. Indeed, such an application may still be made under paragraph 276B of HC 395 notwithstanding the amendments to the Rules which came into force on 9 July 2012. We find that the First-tier Tribunal Judge was not obliged to consider the appellant’s appeal on a ground which the appellant himself had not raised and, whilst it may have been plain on the face of the papers that the appellant had remained in the United Kingdom for more than ten years, it was for the appellant to establish that he met the requirements of paragraph 276B and he made no attempt whatever to do so.
Article 8 ECHR
10. At paragraph , the grounds of appeal assert that:
“It was clear from the appellant’s grounds that he and his family have established a private and family life in the UK, yet like the above matters there was no consideration whatsoever of this issue and specifically Article 8 ECHR (see Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002).
11. The First-tier Tribunal’s determination is silent as to Article 8 ECHR. The judge had correctly allowed the appeal against the decision under Section 47 of the Immigration, Asylum and Nationality Act 2006 to remove the appellant in the light of Adamally & Jafferi (Section 47 removal decisions; Tribunal Procedures)  UKUT 414. However, there was no suggestion in the determination that the judge had refrained from dealing with Article 8 ECHR simply because he had allowed the appeal against the removal decision. Section 84(1)(g) of the 2002 Act provides that an appeal against an immigration decision may be brought on the ground that “the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under Section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.” As Mr Deller pointed out Section 84(1)(g) provided that the appellant raise Article 8 ECHR in his appeal notwithstanding the judge’s finding that the removal decision was not in accordance with the law.
12. Not surprisingly, given that the appellant did not have the assistance of legal advice, the grounds of appeal to the First-tier Tribunal makes no mention of Article 8 ECHR. The grounds do, however, refer to the appellant and his family’s “love of our adopted country which we have made our home by choice”. We find that this passage of the grounds of appeal together with the particular facts in this case should have led the judge to consider the appeal under Article 8 ECHR. Given the paucity of evidence he may well have dismissed an appeal on that ground but the paucity of evidence (unlike in the EEA Regulations paragraph 276B appeals, it could only have succeeded had specific facts been approved) it is conceivable that the judge might have found that in the lengthy period during which the appellant and his family lived in the United Kingdom they had established ties here which it would be disproportionate to disrupt by their removal. In failing to engage with Article 8 ECHR, we find that the judge erred in law such that the decision needs to be re-made. We direct that the appeal be remitted to the First-tier Tribunal to re-make that decision, the appellant having been denied complete and proper determination of his appeal by Judge Stott. We would, however, urge both the appellant and the respondent to address as a matter of urgency, and before the appeal is listed for hearing in the First-tier Tribunal, the question of the appellant’s claim to enjoy permanent residence in the United Kingdom on account of his Portuguese citizenship and his long residence.
13. This appeal is allowed. We direct that the appeal is remitted to the First-tier Tribunal (not Judge Stott) to re-make the decision on Article 8 ECHR grounds.
Upper Tribunal Judge Clive Lane