United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/27011/2015

 

THE IMMIGRATION ACTS

 

Heard at the Civil Justice Centre, Manchester Decision & Reasons Promulgated

On the 26 ^th November 2018 On the 4 ^th January 2019

 

Before:

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:

MR TANVIR AHMED KHARAL

(Anonymity Direction not made)

Appellant

And

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Holmes (Counsel)

For the Respondent: Mr Tan (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Morris promulgated on the 28 ^th April 2017. In that decision, Judge Morris dismissed the Appellant's appeal on Human Rights grounds having found that there were not "insurmountable obstacles" for the purposes of paragraph EX.1 and EX.2 which would prevent the Appellant and his wife returning to Pakistan.
2. Although permission to appeal was initially refused by First-tier Tribunal Judge Kelly on the 19 ^th June 2018, on the basis that the application was out of time, permission to appeal was then granted by Upper Tribunal Judge King on the 11 ^th October 2018, who noted that the grounds were out of time, but the grounds were said to raise an important issue of whether the Appellant's claim was one which met the Immigration Rules under the partner route. It was said that Judge King had found that the hearing had proceeded on the basis of paragraph 276ADE and the findings as to insurmountable obstacles were well made, but only arose for consideration if the requirements of paragraph R-LTRPT1.1 of Appendix FM were not met and it was arguable that they were met such as to render refusal disproportionate. Permission to appeal was granted.
3. It is clear in this case that all parties before the First-tier Tribunal proceeded on the basis that the transitional provisions did not apply and that the appeal was considered under the new more limited grounds of appeal, rather than the appeal being considered under the old Immigration Rules. Mr Tan on behalf of the Home Office conceded that there was a material error and he did not seek to oppose any of the grounds put forward by the Appellant. It is therefore clearly in the interests of justice pursuant to Rule 21(7) of the Upper Tribunal Procedure Rules 2008, for the application to be admitted, even though out of time.
4. Within the Grounds of Appeal, it was argued that this case was caught by the transitional provisions of the 2002 Act and was not a new Human Rights appeal but rather an old style Immigration Rules appeal and that in fact the Judge needed to consider the Appellant's compliance with the old Immigration Rule 287. It was further argued that the relevant transitional provisions in the Immigration Rules also applied, such that the entitlement at stake before the First-tier Tribunal was that of Indefinite Leave to Remain. It is argued that the issues in the refusal letter were recorded by the Judge as being conceded by the Secretary of State and that the Appellant's appeal ought to have been successful had the correct immigration rule being applied. Within the Grounds of Appeal dated the 10 ^th June 2018, it is argued that pursuant to Article 9 of the Immigration Act 2014 (Commencement Number 3 Transitional and Saving Provisions) Order 2014 (SI2014/2771) that the same provisions continue to have effect notwithstanding the commencement of the new relevant provisions insofar as they relate to decisions of the Secretary of State made on or after the 6 ^th April 2015 to refuse an application made before the 6 ^th April 2015, where that decision is either a decision to refuse leave to enter, to refuse entry clearance, to refuse a significant entitlement under Section 10 of the 2002 Act or to refuse to vary a person's leave to enter or remain and where the result of that decision is that a person has no leave to enter or remain, unless that decision is also refusal of an asylum, protection or Human Rights claim or a decision made before the 6 ^th April 2015 in relation to which before the 6 ^th April 2015, an appeal could have been brought or was pending under the saved provisions.
5. It is argued that the current application in the present case was made on the 1 ^st April 2015 and was therefore caught by the transitional provisions under Article 9(c) of the Commencement Order and that the Tribunal's jurisdiction was therefore not limited to a Human Rights appeal but rather centred on all the grounds of appeal that the Tribunal had to consider under the version of Section 82 in force prior to the 6 ^th April 2015. It is argued the Judge failed to directly apply the relevant Immigration Rules to the Appellant's case.
6. It was further argued that the Appellant entered the UK in 2009 with valid Leave to Remain as a fiancée and was subsequently extended in early 2010 by way of grant of Leave to Remain as a spouse. It is said the Appellant therefore obtained his leave under the old Immigration Rules rather than those set out in Appendix FM and that the Appellant therefore should have benefitted from the transitional provisions set out in Immigration Rule A280(c) in respect of which the provisions of Part A continue to apply on or after the 9 ^th July 2012 to applications made by persons in the UK who have been granted entry clearance or limited leave to enter or remain under Part A before the 9 ^th July 2012 where there was a requirement of Part A and where this is a requirement of Part A, leave to enter or limited leave to remain is extant. It is said the Appellant's appeal failed to be considered as against the relevant requirements of the Immigration Rule 2A7 and therefore there was never any place for consideration of "very significant obstacles" in the Appellant's case.
7. It is further argued by the Appellant that had the Appellant's claim being properly looked at under Immigration Rule 287 and the transitional provisions properly applied, then in circumstances where at the Tribunal the Secretary of State had conceded that the Appellant's "spent" convictions did not need to be declared on the application form and that the Appellant and his wife were in a genuine and subsisting relationship and the only issue in the appeal was whether there were "insurmountable obstacles", that as the "insurmountable obstacles" was not relevant given the transitional provisions, and the only reasons relied upon were not being pursued, that the appeal ought simply to be allowed and a decision made allowing the appeal under the Immigration Rules, such that the Appellant would be entitled to Indefinite Leave to Remain.
8. I note from paragraph 8 of the decision of the First-tier Tribunal Judge that although another reason for the refusal was put on the basis that the Appellant had not passed an English test at a minimum level of B1, that the Judge had noted the relevant certificate dated the 13 ^th October 2016 issued by Trinity College, London confirmed the Appellant had achieved the standard and was produced at the hearing, and that at the hearing it was noted by the Judge that it was argued by the Secretary of State that the only issue was whether or not there were insurmountable obstacles, such that the Judge found that the reason regarding the English language test was not being pursued by the Secretary of State. Indeed Mr Tan confirmed before me that in fact the argument regarding the English language test was not pursued at the First-tier.
9. At the appeal hearing Mr Tan quite properly conceded that there was a material error in this case, given that the Judge had failed to properly apply the transitional provisions of the Appellant or any route to a settlement prior to 2012. He did not oppose any of the grounds of appeal and accepted that it was pointless to pursue the appeal further and agreed that the decision did involve a material error of law by the Judge looking at "insurmountable obstacles" and considering it as a Human Rights appeal rather than an appeal under the old Immigration Rules. He conceded that the appeal should be allowed outright under the Immigration Rules.
10. I therefore do find following these concessions that the decision of First-tier Tribunal Judge Morris does contain a material error of law and is set aside. In light of the concession further made by the Secretary of State, I find that the Appellant's appeal is to be allowed under the Immigration Rules, the requirements of those rules having now agreed to have been met.

Notice of Decision

The decision of First-tier Tribunal Judge Morris does contain a material error of law and is set aside.

I allow the Appellant's appeal under the old Immigration Rules which were applicable to his appeal, such that the Appellant would be entitled to Indefinite Leave to Remain.

Signed

Deputy Upper Tribunal Judge McGinty Dated 26 ^th November 2018