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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2023-000405 |
|
First-tier Tribunal No: HU /58101/2021 IA/17750/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 25 April 2025
Before
UPPER TRIBUNAL JUDGE LINDSLEY
Between
FARHAN SULTAN ALAM FARIDI
(ANONYMITY ORDER NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr P Nath, of Counsel, instructed by Archbold Solicitors Ltd
For the Respondent: Ms N Kerr, Senior Home Office Presenting Officer
Heard at Field House on 15 April 2025
DECISION AND REASONS
Introduction
1. The appellant is a citizen of Pakistan born on 19 th April 1983. He came to the UK in January 2011 with entry clearance as a student. He had leave in this capacity until 2015, however on 13 th August 2014 his leave was curtailed to expire in October 2014 because the sponsorship licence of the British Institute of Technology & E-commerce was revoked. He made an application to remain as a student at another college, Futures College, with a new CAS but while his application was pending that college's licence was revoked and he was given 60 days to find a new college on 16 th April 2015. No further CAS was obtained and his application was refused. The decision was appealed but that appeal was dismissed. The appellant became appeal rights exhausted on 5 th December 2016. The appellant contends that he was granted temporary admission and bail at this point but the position of the respondent is that she has no record of this.
2. On 24 th October 2016 the appellant applied to remain as a dependent family member of an EEA citizen, namely Kashif Jamil, an Italian citizen and paternal first cousin of the appellant. This application was refused on 3 rd June 2017 with no right of appeal. A judicial review was lodged but then withdrawn on the advice of solicitors who made some s.120 submissions / human rights claim submissions dated 17 th July 2018. Further human rights and long residence representations dated 12 th June 2021 were refused in a decision of the respondent dated 8 th December 2021. The appellant's appeal against this decision was allowed by a First-tier Tribunal Judge in a decision promulgated on 29 th December 2022 on Article 8 ECHR grounds because it was found that the appellant had suffered a gross injustice following Sala [201 6] UKUT 411 because he was denied an appeal against the refusal of his EEA application, and in this context it was found that he was entitled to be placed in a similar position to that he would have been if he had not been denied this remedy .
3. Permission to appeal was granted by a Judge of the First-tier Tribunal and Deputy Upper Tribunal Judge GA Black found that the First-tier Tribunal had erred in law for the reasons set out in her decision appended at Annex A to this decision.
4. The matter now comes before me to remake the appeal.
Evidence & Submissions - Remaking
5. In short summary the written and oral evidence of the appellant is as follows. He wishes to apply to remain in the UK because he has been in the UK for fourteen years. He says he has always tried to make in-time applications. His studies were frustrated by the revocation of the licences of his two colleges, and at the point in 2015 when he was given a further 60 days to find another college he had been unable to obtain a further CAS. This caused him to lose money, and, he argues, he was let down by the Home Office who revoked the licences and by his legal representatives who were negligent in respect of the judicial review of his EEA refusal as a family member and by telling him not to attend his appeal hearing in 2016. The appellant says that he has no criminal record and contributes in communal and cultural activities in the UK and so is a positive contributor to the community in the UK. He says that he has lost connections with friends and family in Pakistan, and made many British citizen friends who support his application. He said that his witnesses had not attended the Upper Tribunal as his solicitors had not told him they should attend to give oral evidence. The appellant explained that his brother went to live in Canada in 2003 and his parents joined his brother in 2017, he therefore only has distant cousins in Pakistan. He says that these people would not assist him to reintegrate, and that he would not be able to use his MBA because he obtained it in 2013 and has therefore not used this knowledge for a period of twelve years, and since he entered the UK he has not been able to do work appropriate to his qualifications whilst in the UK so he has no relevant/useful work experience. He accepted however that he is able to speak both English (the language in which he gave evidence) and Urdu.
6. The documentary evidence in support of his claim shows that he has an MBA from the University of Wales dated 1 st May 2013. In addition he has submitted letters in support confirming that the applicant is well regarded (kind, respectable, hardworking and caring) and enjoys private life ties with the five writers, namely Adnan Niaz, Manel Bouchou Niaz, Syed Nisar Hussain Shah, Imran Saad Qureshi and Fayyaz Ahmed.
7. The respondent submits that the appeal should be dismissed, and relied upon the reasons for refusal letter of December 2021, the review of July 2022, the skeleton argument from the error of law hearing dated 22 nd May 2023, and oral submissions from Ms Kerr.
8. It is argued that the appellant cannot succeed in his Article 8 ECHR appeal by relying upon Immigration Rule 276B as he became appeal rights exhausted on 5 th December 2016 and so has only ever been lawfully present for five years and eleven months, his subsequent time in the UK having all been without leave to remain. He cannot therefore meet the requirements of the Immigration Rules at paragraph 276B to have been lawfully present for ten years.
9. It is argued that the appellant cannot meet the private life Immigration Rules at Appendix PL by showing that he would have very significant obstacles to integration if returned to Pakistan because he is well qualified, bilingual in Urdu and English and has shown that he can move to another country and make friends and establish a private life as he has done in the UK. It is not relevant that his nuclear family no longer live in Pakistan.
10. If the appeal is looked at more broadly under Article 8 ECHR it is argued that the appellant is not entitled to succeed because he entered as a student, and thus in a capacity where he should have expected to leave the UK at the end of his studies, and there are no exceptional aspects to his case. He can keep in touch with his UK friends by modern means of communication. Little weight can be given to his private life ties given that they have all been formed whilst he has been precariously and unlawfully present, applying s117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002, and weight must be given to the public interest in maintaining effective immigration control.
11. Mr Nath initially said that he relied upon the skeleton argument lodged by the appellant's current solicitors, Archbold Solicitors Ltd, but when I asked him to identify anything in this document which was correct or relevant he did not take me to any particular paragraph. Mr Nath accepted that given what is found by Upper Tribunal Judge GA Black in her error of law decision, namely that there was no injustice caused by the respondent to the appellant when he was not given a right of appeal in June 2017 and that this matter was not capable of affecting the proportionality assessment, that he could not argue that the appellant had been lawfully present in the UK for ten years, and thus that the appeal could not succeed in accordance with paragraph 276B of the Immigration Rules.
12. Mr Nath argued however that the appellant's close ties with the UK formed over the past 14 years meant that the appellant would have very significant obstacles to integration if returned to his country of nationality, Pakistan, as he qualifications had become old and had not been used in work due to his period in the UK and he had no family to whom he could turn to for support in establishing himself.
13. Mr Nath argued that the appellant is also entitled to remain when Article 8 ECHR is looked at more generally outside of the Immigration Rules because of his degree of integration in the UK and his having adopted a British cultural identity over his 14 years of residence, and due to his having made numerous friends with whom he has deep attachments. If returned to Pakistan he would be without money or relatives or a support network, and without work.
Conclusions - Remaking
14. The starting point for my decision is that Judge GA Black, found, when making her error of law decision, that there was no injustice caused to the appellant by the respondent when he was refused a EEA residence permit without a right of appeal in June 2017 following the Upper Tribunal decision in Sala. She noted that the respondent simply followed the law as established by the Upper Tribunal, and also that there was no evidence that the appellant would have won his appeal and thus that he had not been able to show that he should be seen as having been in the UK lawfully since the point of the EEA application. There was nothing before me that altered the conclusion that there was no evidence the appellant would have won his EEA appeal had he had one, indeed it is notable that the appellant's claimed paternal cousin, the Italian citizen Mr Kashif Jamil, did not write a letter in support of this appeal for the appellant and there were no submissions that he remained a dependent family member of this man. There was also no evidence that the appellant had been on temporary admission or bail from the point when he became appeal rights exhausted in December 2016 to the point of time when he made his EEA application/ it was refused. In conclusion Judge GA Black found that the denial of an appeal against the EEA residence permit application is not a matter capable of affected the proportionality assessment under Article 8 ECHR.
15. In this context Mr Nath rightly did not pursue a submission that the appellant had been lawfully present for ten years, and thus could succeed in his Article 8 ECHR human rights appeal by reference to paragraph 276B of the Immigration Rules on the basis of ten years lawful residence. The evidence before me was that the appellant had been lawfully present from January 2011 to December 2016 as a student/ appealing a refusal of leave as a student and thus for a period of five years and 11 months. I find that the rest of his 14 year and three month stay in the UK, from 5 th December 2016 to the present day, has been without leave to remain, and thus he has been present in the UK during this time as an overstayer.
16. It was argued by Mr Nath that the appellant was entitled to succeed in his appeal by reference to Appendix PL of the Immigration Rules on the basis that he would have very significant obstacles to integration if returned to Pakistan. I do not find that this is the case for the following reasons. The appellant is a healthy 41 year old man who has an MBA from the University of Wales awarded in May 2013. He has managed to support himself whilst in the UK, either from friends, family or by working. Given what is said by his friends in their letters about him being hard working I find that it is probable that he has been supporting himself, in part at least, in the UK by working. I find that he would be able to support himself in the same way if returned to Pakistan, where he would have the advantage of being a lawfully present citizen. He retains the ability to speak Urdu, in addition to having good English, has higher qualifications and a driving licence. The appellant has shown he is able to make friendships on moving to a new country, as evidenced by the five UK based people who have written in support of his appeal, and so I find he would be able to make a new circle of friends if returned to Pakistan. Whilst he may have no immediate family remaining in Pakistan to provide accommodation I do not find that this would constitute a very significant obstacle to integration if he were returned there: he would be able to access sufficient funds for housing and to support himself in the same way as he has done in the UK. There was no country of origin evidence placed before me to support a contention that obtaining work and accommodation would be more difficult in Pakistan than in the UK. I find therefore that the appellant would be able to achieve a satisfactory level of integration/ private life on return to Pakistan.
17. It follows that the appellant cannot succeed in this appeal by reference to the Immigration Rules, but I go on to consider his appeal more broadly by conducting an Article 8 ECHR balancing exercise. In favour of the appellant is the fact that he has lived in the UK for 14 years, almost six of which were lawfully, and has private life ties in this country, and in particular has five close friends, who have written in support of his remaining in this country as a respectable and hardworking person. Neutral matters are that he speaks English and appears to be financially independent. Whilst he has raised complaints against his solicitors in the UK none of these were properly particularised and ultimately his remedy against them would be complaints and claims for damages for professional negligence if he has been wrongly advised. I find in these circumstances that errors by solicitors are not factors to be weighed in an Article 8 ECHR proportionality assessment. Against the appellant is the fact that he cannot meet the requirements of any provision of the Immigration Rules, and thus that his removal is in the public interest in the interest of maintaining immigration control. I have also found that he would be able to reestablish himself and have a satisfactory private life in Pakistan. Further little weight can be given to his private life ties, including his period of residence and his five close friends, applying s.117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002, as these private life ties have all been formed whilst he has been precariously and then unlawfully present in the UK. This means that there is ultimately nothing of any significant weight in the appellant's favour, and thus I conclude, balancing all of the evidence before me, that the appellant's removal is a proportionate interference with his right to respect for private life.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. Deputy Upper Tribunal Judge GA Black set aside the decision of the First-tier Tribunal.
3. I re-make the decision in the appeal by dismissing it on Article 8 ECHR grounds.
Fiona Lindsley
Judge of the Upper Tribunal
Immigration and Asylum Chamber
15 TH April 2025
ANNEX A: ERROR OF LAW DECISION
DECISION AND R EA SONS
1. This is an error of law d ecisi on. The S ecretary of State is the Appell ant in this matter and I shal l refer to her as "th e SSH D" and to the resp ondent as "the Clai mant".
2. The Clai mant is a citiz en of Pa kistan and was born on 19.4. 1983. He claime d that he esta bli she d 10 years lawful re sidence under paragraph 276B. It is helpful to set out a summary of th e chron ology of the C lai mant's immigra tion histo ry. The Claimant enter ed the UK in Januar y 2011 wi th entry clear ance as a student. His stu dent leave was gr anted until 2015. A letter of curtailm ent was sent to him on 13.8.2014 for leave to expire in October 2014. An applica tion was ma de fo r furthe r leave with a n ew CAS but while tha t was p end ing the c olleg e's lic enc e was r evoked. No furth er CA S was obt ained an d th e applicati on was refused. Tha t decisi on was challenged by the appellant and dismiss ed. He b ecame appeal rights exhaus ted on 5.12.2016 and he was issued with im migrati on b ail and temporary admission. The Claim an t then applied as a dep en dent family member of an EEA citizen, which was refused on 3.6.201 7 wi thout a righ t of appeal. Judicial Review was pursued but withdr awn followin g ad vic e fr om his s olicitors .
3. In a d ecisi on promulga ted on 29 th D ecember 2022 (FTJ Mun onyedi) (" FTT") the Claim an t' s appeal was allowed on human rights groun ds. The FTT accepted that ar gument put on b ehal f of the Cl aim ant that he had suffere d an injustice (no ri ght of appeal) beca use of the deci sion in Sala [201 6] UKUT 411 which was subsequ ently overturned ( Kh an v SSHD [2017] EWCA C iv 1755) . Th e FTT accepte d that as a result the Claim ant ou ght t o hav e be en pl aced in th e posi tion had Sala not be en decided and thus g iven a right of appe al aga inst the refusal of E EA applicati on. The FTT [2 7] accepted the argument foll owing the principles in Ahshan V SSH D (Rev 1) [ 2017] EW CA 2009 and Kh an, Islam & Huss ain v S SHD [ 2018] EW CA 1684 , not with stan ding that those cases were TOIEC matters. The FTT found the Claim ant to be a credible wi tness . Th e FTT found that the appellant had suffered a "gross" injustice [30] an d this amounte d to an exc eptional case f oll owing on from which his remo val woul d amount t o a breach of Article 8. The FTT found tha t he should be afforde d th e opportunity to appeal th e EEA decisi on an d/or a pply for further leave.
Grounds of appeal
4. The SSHD argued that the FTT failed to give adequate reas ons for findings on a material matter. Th e FTT in ess ence carried out a free s tanding Article 8 con sidera tion a s to unfai rnes s in r elati on t o n ot b ein g granted a ri ght of appe al in previou s proceedings . The Clai man t di d not meet the require ments under paragraph 276ADE and the FTT failed to c on side r requirement s under se ction 117B Na tion ality, Immigration & Asylum Act 2002 ( as am ended).
Permis sion to app eal
5. Permis sion to appeal w as grante d by UTJ L Sm ith on r enewal. Whilst accepting tha t the FTT made reference to section 117B, the FTT arguably erred in failing t o explain h ow th e proportionality assessm ent was c onducted ha ving regard to a) the fact that the appell ant h ad no leave to rem ain in the UK since 2017 and could not meet paragraph 27 6AB, b) the app ell an t could not meet paragra ph 27 6ADE( 1)(vi), c) his precarious and unlawful status meant that hi s private life carried little wei ght and d) that he c ould not meet the Rules weighed in the public interest. U TJ Smith exp anded on the scope of th e grant in leng thy and de tailed observa tion s in paragra phs 3-6 c onsi dering the historical injustice po int.
Skeleton argum ent date d 22.5.2023
6. In a skel eton argumen t submitted on the day b ef ore th e hea ring , the SSH D sought per missi on to amen d her grounds of appeal under th e U T Procedure Rules 200 8 5(3) in ligh t of th e observati ons made by UTJ Smith. Sh e sought to argue the po int that the FTT erred in wr ong ly applyin g the princi ples in Ahsan to th e appell an t's circumst ance s fo llowing Sala whi ch were not applicable in the ap pell ant's circumst ances. Mr Terrell ind icated that he int ended to mak e an applicati on to a mend the grounds of appeal.
The h earing
Adjourn ment applicati on
7. At th e hea rin g b efore m e Mr M aqsood made an applicati on for an adjournment under Rule 2 3 (1)(a) and applied to set aside the gr ant of permi ssion to appeal by U TJ Smith. He reitera te d the arguments drawin g an analogy wi th the ETS cases and alte rnatively argued that th e Claim ant woul d be a ble to make up 10 years wi th the temporary admission/ bail accep tin g this was wi thin the di sc retion of the SSHD but which had be en an issue that the FTT failed to determine . He argued that UTJ Smi th had gr anted permi ssi on on gr ounds n ot actu all y pleaded by the S SHD in paragraphs 3-6 of th e p ermission . The UTJ was mistak en in sta tin g that the Claim ant had b een gr anted a righ t of ap peal regard ing the E EA d ecisi on. Mr M aqsoo d took the view that ther e was a procedural irre gularity (Rule 43), although he accepted tha t there was c ontroversy as to whe ther a grant of pe rmissi on coul d b e viewe d as a dispos al of th e proceedings. In any ev ent there ought to be a n ew deci sion ma de on pe rmissi on based s olel y on the grounds as plead ed. To that end an application could be made to U TJ Smith to set asid e her deci sion.
8. Mr Terrell oppose d the argument which was unclear an d whose prosp ects of succe ss were a t most dubious. Th e U TJ had made observati ons in paragraph s 3- 6 which did not detr act fro m the terms of the gr an t set out in the prece din g par agraphs. N o procedural i rregularity had be en identified. Rule 43 was not applicable to a gr an t of permissi on which in any ev ent had be en granted in March 2023 and the Claimant had a mple time in whi ch to ha ve raised the point.
Decisi on on adjourn ment application
9. I refused the applicati on for an a djournm ent and to set asid e of the gr ant of permissi on. Th e crux of the gr ant of pe rmissi on was set ou t by UTJ S mith in th e first two paragraph s an d th e remaining paragra phs were observa tions alb eit detailed and did not amount to dis tinct grounds of appeal that had not be en pleaded. The deci sion as to error of law was for thi s Tribunal to determ ine and it was up to the Tribun al to have regard to those observati ons or not . I took the view that the grounds as pleaded ne ce ssarily incorporated all of the points raised in the gr ant terms and ob servation s in th e permis sion as the central issue was the questi on of unfai rness.
10. Havin g giv en m y decision I indicated t o Mr Te rrell tha t ther e was no n eed for hi m to mak e any applicati on for amendment of the gro unds in light of my s tated vi ew.
The EOL h earin g
11. The FTT found tha t the Claim ant suffered a gro ss injustic e fo llowing S ala because he had n ot been gr anted a ri ght of appeal aga inst the refu sal of his E EA applicati on [ 30-3 1]. Sala wa s subsequently overturne d. The FTT accepted the Claim ant' s argument th at he ou ght therefo r e to be placed in the posi ti on whereb y he be g iven a right of appeal or put in a position to exercis e a right of appeal. The F TT accepted the Cl aimant's argument that his situ ation was an alogous to persons who had be en found not to be di sh onest in th eir TOIEC applications, foll owin g Ashan & Khan. The FTT treated th e injustic e as the m ain factor car rying wei ght in th e proportionality assessm ent under Article 8 .
12. I am s atisfied tha t the F TT erred in fin din g that the Clai man t suffered a g ross injustice an d in adoptin g th e principles applied in TOIE C appeals. At the time of his E EA applicati on S ala wa s a statement of the correc t law and that law subs equently changed. The SSHD applied the law applicable at the tim e and so it cannot be argued tha t th e SSH D cause d any injustice as is th e case in TOIEC appeals where the SSHD had ac te d wron gly. In any even t the Claim ant would not have ga ined any re al adv antage in b eing re turned to that po siti on of h avin g a right of appeal, as there is no g uarantee that had he been given a ri ght of appe al that he would hav e been succes sful. I c onclude tha t the FTT erred in find ing tha t there was an injustic e caused to the C laim ant. I further conclude that an y purported injustice was not ca pable of affec tin g th e proportionality ass essm ent under Article 8 ( P atel (historic injustice; N IAA Part5A) India [ 2020] UKUT 35 1 ( IAC) - see headnote and 46-4 7). This was not a case where the SSH D formed an incorrect view of the Claimant's b ehaviour which turns out to be mistaken .
13. I find some merit in the submissions made by Mr Terrell that the Claimant could ha ve submitted a l ate application, asked for a rec onsi deration after Sala was o verturned in Kh an o r sought to make a fre sh applicati on, neither of which he had done and which could have g iv en him a ri ght of appeal. The Clai mant was theref ore in a positi on fo llowing the clarificati on of the law in Kh an to rega in wh at he had lost namel y a right of appeal. It was ackn owledged that if he was given a ri ght of resid ence under E EA Regulations that coul d be treated a lawful residence but that is entirely speculative. It is fa r from certain that the C laimant would hav e been gr anted a re sidenc e card.
14. I further c onclude that the FTT failed to clearly e xplain why wei ght was placed on that injustic e factor as de terminative of the proporti onality ass essmen t and failed t o c onsider factors under secti on 117B. The FTT concluded that the Clai mant failed to comply wi th paragraph 276B as to 10 years lawful leave and similarly failed to meet paragraph 276A DE as he provided n o evidence of very si gnificant obst acles to his rein tegration in Pa kistan [15-17]. The FTT refers to secti on 117B 2002 Act at [3 3] but fails to specifically con sider th e relev ant f actors and /or to explain why the wei ght is in favour of the Claim ant as aga inst the public interest. There is n o consider ation of the d iffering f actors or any bal ancing exercise. This a mounts to an error in law.
15. The argument put by Mr Maqsood th at any error was not material becau se the Claim ant ha d established 10 years lawful residence on the ba sis of his temporary ad mission/b ail lacks merit. The SSHD has a discreti on to grant 6 mon ths leav e in order for an applicati on under paragrap h 276B to be made. Mr Maqsood argued that this is an alte rnative route for th e Claim ant's appe al to be all owed. The SSHD has not exercised any discreti on in this regard and it is not open to the Tribunal to do so .
Notice of D ecision
There is a material err or of l aw in the d ecision which sh all be set aside. The appeal by the S SHD is allowed.
GA Black
Deputy Judge of the U pper Tribunal
Immigrati on an d As ylum Chamber
31 st May 2023