(Immigration and Asylum Chamber) Appeal Number: HU/04991/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 18 th December 2018
On 18 th January 2019
DEPUTY UPPER TRIBUNAL JUDGE JUSS
(ANONYMITY direction not made)
For the Appellant: Miss S Ferguson (Counsel)
For the Respondent: Mr S Kandola (Senior HOPO)
DECISION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge Bibi, promulgated on 18 th October 2018, following a hearing at Taylor House on 4 th October 2018. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a male, a citizen of Bangladesh, who was born on 26 th March 1988. He appealed against the decision of the Respondent dated 6 th February 2018, refusing his application for indefinite leave to remain in the UK (this being dated 19 th September 2016), whilst claiming that he had acquired ten years of lawful residence in the UK under paragraph 276B of HC 395.
The Appellant's Claim
3. The essence of the Appellant's claim is that the judge was wrong to have found that the Appellant did not qualify under paragraphs 276B and 276ADE(1) of the Immigration Rules, or under freestanding Article 8 ECHR, and moreover she was wrong to have concluded that the Appellant did not acquire ten years' continuous lawful residence in the UK. The Appellant claims that on 9 th May 2015 he made an application as a Tier 2 Skilled Worker Migrant. This application was refused on 13 th October 2015. He had a right to apply for administrative review, which he did, so that on 26 th October 2015 such an application was made. On 13 th October 2015 the application was refused. As a result, the Appellant's Section 3C leave to remain in the UK was exhausted on 13 th November 2015. However, he claims that this is not the end of the matter because he then had the right to make an application within 28 days for further leave. The issue in this appeal, accordingly, revolves around this 28 day exercise of the right to apply for a variation of leave, which the Appellant claimed that he did do, but which in the decision of the judge below, appears not to have been given due consideration.
The Judge's Findings
4. The judge observed that the Appellant's leave had come to an end, by virtue of the Section 3C leave under the Immigration Act 1971, on 13 th November 2015. Indeed, eminent Counsel in the form of Ms S. Broadfoot, had argued that "the Appellant's leave came to an end on 13 th November 2015, by which point he had accrued nine years and one month of continuous lawful residence" only. As the judge observed, Ms Broadfoot argued that this was the case either at the time of application or subsequently (see paragraph 37 and 40 of the Appellant's skeleton argument). This much was set out verbatim in the judge's determination (see paragraph 40).
5. However, as the judge observed,
"Ms Broadfoot argued that other parts of the paragraph are met in that he is not of a bad character, he does not fall for general refusal, and he had not overstayed for a period of more than 28 days because the earliest decision was not validly served upon him, it being wrongly sent to his previous representatives" (paragraph 41).
6. In light of this, the judge went on to say that, "in view of the above, I find that paragraph 276B has not been met as he has not been lawfully resident in the UK for ten continuous lawful years" (paragraph 42).
7. Thereafter, the judge went on to consider other provisions in the Immigration Rules (paragraph 42), before concluding that the Appellant had unfortunately been caught up innocently in a fraud, but "the fact remains that he had not completed ten years' of continuous lawful residence, hence my findings in this regard are academic as it remains the case that he is still unable to satisfy the requirements of Rule 276B(i)(a). This much was stated by the judge at paragraph 48 of the determination. The judge went on to refuse the appeal under freestanding Article 8 jurisprudence as well".
Grounds of Application
8. The grounds of application state that the judge had only referred to Counsel's skeleton argument (at paragraphs 40 and 41) drawing attention to what the skeleton argument stated at paragraphs 37 and 40, but that "the judge has not considered ( or even, not mentioned in her judgment) the material part of the Appellant's representative Ms Broadfoot QC's oral submission. As it was explained that now the Appellant has not met paragraph 276B(i)(a), but other parts of this paragraph clearly demonstrated that the Appellant met continuous lawful residence of ten years, i.e. paragraph 276B(v) of the Immigration Rules. The judge has erred in law by failing to give reason, why she did not accept the Appellant's continuous lawful residence under paragraph 276B(v). The case of Bhudia also suggests that the Appellant has met continuous lawful residence of ten years according to paragraph 276B(v) of the Immigration Rules (see paragraph 7 of the grounds of application).
9. On 9 th November 2018, permission to appeal was granted by the Tribunal. It was stated that it was arguable that the judge had not correctly allowed for the fact that the applications that followed the Section 3C exhaustion of the Appellant's leave by extension of law, on 13 th November 2015, had thereby been extended through further variation of leave to remain applications.
10. At the hearing before me on 18 th December 2018, Miss Ferguson, appearing on behalf of the Appellant, placed strong reliance upon her grounds of application. She submitted that the exhaustion of the Appellant's Section 3C(v) on 13 th November 2015 was not the end of the matter. This was because the Appellant was entitled to apply for an extension of leave to remain. Accordingly, on 4 th December 2015, the Appellant did apply for further leave (on Form FLR(FP)). This the Appellant did through Universal Solicitors, and in the application the Appellant relied upon his private and family life rights. He did so within the 28 day period of grace that was allowed to him. Mr Kandola, the Presenting Officer, helpfully intervened to say that it was not in dispute that this application had indeed been made within the 28 day period which was allowed as a period of grace.
11. Furthermore, Miss Ferguson went on to explain that on 6 th December 2015 thereafter, the Appellant changes legal representatives from Universal Solicitors to SEB Solicitors. The new representatives then updated their details via the Home Office online address system on the same day, namely, on 6 th December 2015. They also sent a letter to the Secretary of State on 7 th December 2015, on the next day, requesting that they also update their records. Miss Ferguson explained that the Home Office case record sheet in fact does confirm that the Secretary of State did receive these correspondences and did indeed also update her records (as this information is clearly demonstrated in the Secretary of State's disclosure of documents) and can be plainly seen in the Appellant's bundle at page 56.
12. Thereafter, Miss Ferguson continued, the Appellant's representatives sent numerous letters between 6 th December 2015 until the end of December 2016, to the Respondent Secretary of State. These included a letter on 7 th December 2015, another letter on 7 th December 2015, a further letter of 22 nd December 2015, an additional letter of 22 nd January 2016, and then letters on 27 th January 2016, on 2 nd February 2016, and on 31 st March 2016, as well as on 21 st May 2016 and 19 th September 2016. In turn, the Respondent Secretary of State also sent several letters to SEB Solicitors, and these are dated 11 th December 2015, 15 th December 2015, 27 th January 2016, and 10 th March 2016. These can all be seen in the Respondent's bundle, from page E67 to E138.
13. Before any decision could be made on the application for extension of leave made by the Appellant on 4 th December 2015, however, SEB Solicitors, being the newly instructed solicitors, now made a variation of leave application on 21 st May 2016. They then attempted to vary that leave application once again by another application on 19 th September 2016. This application to vary was made on SET(LR).
14. However, to the Appellant's great surprise, the application was rejected as invalid on 6 th May 2016, on the basis that the Appellant had not submitted his original passport, despite the fact that the Secretary of State had requested this three times, as maintained by the Secretary of State. The Appellant claims that he did not receive any such correspondence from the Respondent Secretary of State.
15. The application of 4 th December 2015, which was rejected on 6 th May 2016, on the basis of non-compliance with required conditions, namely, the failure to provide the original passport, was not sustainable, submitted Miss Ferguson. The passport of the Appellant was due to expire on 4 th July 2016. The correspondence from the Respondent Secretary of State in the Respondent's bundle at pages E109 to E111, shows that the Appellant's solicitor was in communication with the Respondent in the relevant manner, so that it was wrong to simply reject the Appellant, without refusing it, and particularly as the reason given was that there had been a failure to provide the required fees, which could not be true because the Appellant's bundle shows (at page 93) that on 8 th December 2015 fees were sent out. In her oral submission to me, Miss Ferguson explained that there is an entry of £649 leaving the Appellant's bank account on 8 th December 2015, and this would have been the sum paid for by way of a fee to the Respondent Secretary of State.
16. However, be that as it may that the Respondent was proceeding on the wrong basis by rejecting the Appellant's application on account of material conditions not being fulfilled such as payment of the fee, the fact remained, submitted Miss Ferguson, that the rejection decision was not sent by the Secretary of State to SEB Solicitors, the Appellant's legal representatives. This was despite the fact that there was communication SEB Solicitors and the Respondent Home Office. The Appellant himself was also totally unaware about a decision having been made against him by way of rejection of his application.
17. In short, Miss Ferguson submitted, that had these material matters above been taken fully into account, the judge would have been forced to take account of the fact that the Appellant made an application within the 28 day period (which is accepted by Mr Kandola today at the hearing before me) and that the rejection on the basis that material conditions had not been complied with, namely, that the fee had not been paid, was unsustainable, given what appeared at page 93 of the Appellant's bundle, which was that a fee of £649 was paid on 8 th December 2015. Accordingly, the decision was unsustainable. By this stage, the Appellant was able to show that he had been in this country for ten years.
18. For his part, Mr Kandola submitted that this matter could be approached in two ways. First, if eminent Counsel on the day of the hearing, had already conceded in her skeleton argument that the Appellant could not satisfy the condition that he had lawfully been in the UK for ten years, then that was the end of the matter. What Ms Broadfoot QC had stated (see paragraph 40 of the determination) was that the Appellant had only accrued nine years and one month of continuous lawful residence. This was expressly stated in Ms Broadfoot's skeleton argument (at paragraphs 37 and 40). Today it was being suggested that Ms Broadfoot had actually argued the matter on a different basis orally, and that such inference could be drawn, because the judge had neglected to make any reference to the oral submissions simply stating that she had considered the skeleton argument "and all other evidence" (see paragraph 37). The fact remained, submitted Mr Kandola, that there was no statement from Ms Broadfoot QC to explain what had actually transpired at the hearing, and in particular whether she had orally made submissions to the effect that was now being maintained. Second, submitted Mr Kandola, the other way in which this appeal could be considered was on the basis that, if there was correspondence transpiring between SEB Solicitors and the Respondent Home Office, then the rejection decision, which was made on 6 th May 2016, should have been served on the Appellant's existing solicitors.
19. In this regard, Mr Kandola very helpfully went on to explain that he did have in his notes an email dated 11 th April 2016 from the Appellant himself to the Respondent Home Office, enquiring about the rejection decision. In response to that request the Home Office by recorded delivery (under number KX711930876GB) made an ex gratia refund of the Appellant's fee, and disclosed the decision against the Appellant of 6 th May 2016. Mr Kandola helpfully explained that what seems to have happened here is that there was a trail of correspondence under one CIJ number between Universal Solicitors, which were the Appellant's previous solicitors, and the Home Office; and a separate trail of correspondence under a separate CIJ number between SEB Solicitors, the Appellant's current solicitors, and the Home Office. Whilst it was the case that this was the same government department, no-one had been able to match up the two trails of correspondence, so that even though, after the change of solicitors to SEB Solicitors, correspondence continued between SEB Solicitors and the Appellant, the decision may well have been served at the relevant time upon Universal Solicitors, rather than upon SEB Solicitors, as should have been the case, given that the Respondent Secretary of State had updated their records with the new solicitors on 7 th December 2015, upon request of the Appellant's current solicitors. This evidence can be seen in the Appellant's bundle at page 56.
20. In reply, Miss Ferguson stated that the evening of 11 th April 2016 and what followed it is actually recorded in the Appellant's bundle at page 95. This is even from the Appellant himself requesting that the rejection decision of 6 th May 2016 be served upon him.
Error of Law
21. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
22. First, it is plain that the argument before Judge Bibi, also included an argument that the Appellant had not overstayed "for a period of more than 28 days because the earliest decision was not validly served upon him".
23. Second, the argument before Judge Bibi also included the submission that the earliest decision was "wrongly sent to his previous representatives" (paragraph 41). That is the very basis upon which the application before this Tribunal has now been put. It was incumbent upon the judge to consider the basis upon which it was being stated that the Appellant had not overstayed for a period of more than 28 days (a matter that has been openly accepted by Mr Kandola during the hearing before me today), and it was also incumbent upon the judge to consider the issue that the decision had been wrongly sent to previous representatives, namely, Universal Solicitors.
24. Had this been the case, it would have become plain to the Tribunal that there had been a most ghastly mix up in two trails of correspondence, eventuating from two different CIJ numbers, albeit within the same legal department, that led to a confusion, whereby the Appellant's current representatives, SEB solicitors, were not served with the rejection decision (which was not a refusal decision). The rejection decision was on the basis that the Appellant had not complied with the fee requirements.
25. This is difficult to understand, given that by the time that the Appellant himself on 11 th April 2016 emailed the Respondent Secretary of State, what he was sent was an ex gratia refund of the fee (as I understand it), and also sent the unserved decision of 6 th May 2016, which she would have been able to challenge, and when challenged would have led to the Appellant being able to show that he could demonstrate ten years of lawful residence in this country. The suggestion moreover that the Appellant had failed to provide his passport, despite three requests being made from the Respondent Home Office, is one that the Appellant also vehemently contests, alleging that he did not receive such a request for information, and that in any event the passport in question was with the Home Office department in any event.
26. It is plain that these matters need now to be properly probed and ventilated with a clear chronology of events, and a cross-reference to the documentary trail, before it can be affirmatively decided that the Appellant succeeds in being able to show that he has got ten years of lawful residence in this country.
27. The additional argument that he succeeds in any event on the basis of paragraph 276ADE and paragraph 276B, is also a matter that needs considering by the Tribunal again. The Appellant should not be deprived of the chance to have the matters considered again properly at first instance, before there is a right of appeal from that decision again to the Upper Tribunal, should that prove necessary. This being so, the appropriate course of action is for this matter to be remitted back to the First-tier Tribunal again.
Notice of Decision
I am satisfied that the making of the decision by the judge involved the making of an error on a point of law. I set aside the decision below. I remake the decision as follows. This matter is remitted back to the First-tier Tribunal to be determined by a judge other than Judge Bibi pursuant to Practice Statement 7.2(a).
No anonymity direction is made.
This appeal is allowed to that extent.
Deputy Upper Tribunal Judge Juss 10 th January 2019