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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002487
	First-tier Tribunal No: HU/63156/2023 LH/02680/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE ATHWAL

 

Between

 

ZaKIR HUSSAIN

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Pipe of Counsel, Judith McCarthy Solicitors

For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 7 February 2025

 

DECISION AND REASONS

1.        This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-tier Tribunal promulgated on 29 April 2024 dismissing the appellant's appeal under s 82 (1) (b) Nationality, Immigration and Asylum Act 2002 against the respondent's decision of 26 October 2023 refusing his human rights' claim. This remaking follows the setting aside of the First-tier Tribunal decision by Upper Tribunal Judge Pinder for a material error of law in a decision and reasons issued on 27 November 2024. The Judge directed that the appeal be reheard in the Upper Tribunal. Their error of law decision is attached in the annex below.

2.        An anonymity order was issued by the First-tier Tribunal, and Upper Tribunal Judge Pinder. We considered the terms of Guidance Note 2022 no. 2 - Anonymity Orders and Hearings in Private. Restrictions on open justice must be justified and proportionate and not more extensive than necessary to protect the interests of justice. We clarified whether there remained an exception to the rule of open justice. Mr Pipe confirmed that there was not and he agreed that it was not necessary to continue the anonymity order.

Background

3.        The Appellant is a citizen of Bangladesh. He claims that he entered the UK in 1999. On 11 July 2012 he applied for British citizenship, but the Respondent refused his application on the grounds that he had produced fraudulent documents. On 30 March 2015 he applied for leave to remain on the basis of his private life. It was refused by the Respondent on 15 August 2015 on the grounds of suitability. The Appellant was given an out of country right of appeal which was not exercised. On 11 December 2015 the Appellant was recorded as an absconder. A further private life application was made on 7 March 2019 which was refused by the Respondent on 29 July 2019. The Appellant lodged an appeal, but subsequently withdrew it.

4.        The Appellant then made this, his third private life application on 22 June 2022. The Appellant claimed that he had been continuously resident in the UK for a continuous period of at least 20 years. The respondent initially refused the application on grounds of suitability (false documents in relation to the citizenship application) as well as eligibility, but by the stage of the respondent's review suitability was conceded, not on the basis the documents were genuine, but on the basis that it had been over 10 years since the documents were used.

Issues

5.        Judge Pinder clarified the principal controversial issues with the parties. It was agreed that the sole issue to be determined was whether the Appellant was resident in the UK in 1999, in 2013-2014, and in 2016-2017.

6.        At the hearing the parties agreed the following matters:

a.        Whether the Appellant was resident in the UK in 1999 was irrelevant for the purposes of the appeal because the 20-year continuous residence period started in June 2002 and the respondent had accepted that the appellant was resident in the UK between 2000 - 2012.

b.       The Respondent did not dispute that the Appellant had produced evidence of his residence covering 2000 to 2012, 2015, and 2018 to date.

7.        The sole issues that remained were whether the Appellant was resident in 2013-2014, and in 2016-2017.

Evidence

8.        The Appellant provided a supplementary bundle at the error of law hearing. Judge Pinder admitted the additional evidence set out at Part B of the composite bundle (pages 14-20).

9.        The Appellant adopted his witness statement dated 6 February 2024. He was not asked supplementary questions.

10.    In cross-examination the Appellant gave the following evidence:

a.        He rejected the assertion that he had not provided his full medical records and stated that he gave them to his solicitor;

b.       He arrived in the UK in 1999 and he opened his NatWest bank account in 2000 and had banked there since. When asked why he had not provided details of transactions for the periods in dispute, he stated that he had provided his bank statements to his solicitors. Mr Pipe confirmed that all financial documents had been served and that the Appellant did not have evidence of transactions for the periods in dispute;

c.        He had lived with cousins and his brother during his time in the UK and had resided at approximately five or six different addresses.

11.    In re-examination and in answer to our questions the Appellant stated:

a.        That he went to West Bromwich Link Centre where his blood sugar was tested;

b.       He was in the UK for the entire time during 2013-2014 and 2016-2017.

Submissions

12.    Ms Simbi submitted that the Appellant had failed to provide satisfactory evidence that on the balance of probability, he had been in the UK during the contested periods. The burden was on the Appellant to produce satisfactory evidence and he failed to do so. The medical appointment letters and postal poll cards did not establish that he had been present in the UK during the periods in issue. It would not have been unreasonable for the Appellant to provide his bank statements, evidencing transactions for 2013 to 2014. The missing medical records and bank statements undermined the Appellant's account. The Appellant had entered the UK undetected and it was not unreasonable that he could have left, and re-entered undetected.

13.    Mr Pipe argued that the chronology of this case was important. There was no dispute over the fact that the Appellant was continuously resident in the UK from 2000 to 2012, 2015, and 2018 onwards. The Appellant had demonstrated that his motivation was to stay in the UK by making several applications over the years from the UK. The Respondent did not take enforcement action against the Appellant in 2015 and as a result he remained in the UK. The Appellant relied on letters sent by the Respondent to the Appellant's representative. We were invited to take judicial notice of the fact that the Appellant's representatives could not have acted on behalf of the Appellant if they were not in contact with him because that would be in breach of their professional obligations. The postal poll cards established that he was recorded on the electoral register and established his address during this time. The council tax receipt dated 5 January 2016 established on balance that he was living at that address and had paid his council tax. It was highly unlikely that someone would pay that amount, under the Appellant's name if he was not in the country. The diabetes test results established that he had been tested in the UK. When all of this evidence was considered cumulatively the Appellant had established that he had been continuously resident in the UK for at least 20 years.

14.    At the conclusion of the hearing the Appellant was informed that his appeal was allowed and that he would be provided with his reasons in writing.

Discussion and Analysis

Period of 2013-2014

15.    We have considered the Appellant's evidence and make the following findings:

a.        We attach weight to the Appellant's oral evidence that he did not leave the UK during this period. This evidence was not undermined in cross-examination.

b.       The Appellant has provided a letter from the Respondent dated 2 May 2013 in which the Respondent refused the Appellant's application for naturalisation. The letter states that the Appellant must now make arrangements to regularise his immigration status in the UK. We are satisfied that the Appellant was in the UK during this time.

c.        The Appellant has provided a letter from the Respondent to J McCarthy Solicitors, who represent him today, dated 12 August 2014 which acknowledges the receipt of a letter before claim dated 25 July 2014 in regard to judicial review proceedings. There is a further letter sent by the Respondent to J McCarthy Solicitors dated 17 October 2014 in response to a letter dated 2 September 2014 in which the Appellant's representatives requested the return of the Appellant's ILR vignette or, if she intended to revoke the ILR, a further immigration decision. We are satisfied that the Appellant was present in the UK during 2013-14; he was providing instructions to his representatives in order to try to regularise his immigration status.

Period of 2016-2017

16.    We have considered the Appellant's evidence and make the following findings:

a.        We carry forward our findings for the period of 2013 and 2014 and take into account that the Respondent has accepted that he was resident here during 2015.

b.       We again attach weight to the Appellant's oral evidence that he did not leave the UK during 2016-2017.

c.        The Appellant has provided a council tax receipt dated 5 January 2016. It records the Appellant's name and address. The address is the same as that recorded on his postal poll cards for elections in May 2011, August 2014, June 2016, and May 2017. The receipt records that the Appellant paid in cash. We attach significant weight to Mr Pipe's submissions that it is highly unlikely that someone else would have paid this tax on behalf of the Appellant if he was not present in the UK.

d.       The Appellant has provided NHS letters which record that diabetes tests were conducted upon him on 14 August 2015, 17 November 2015, 6 December 2016, and 26 May 2017. The address recorded on the letters is the same as that recorded on his postal poll cards and the council tax payment receipt. We are satisfied that the Appellant was in the UK at these times.

e.        The Appellant has produced an NHS appointment for an MRI scan on 14 December 2017. The address remains the same. We are satisfied that he must have been seen by his GP before this date so that a referral to the hospital could be made.

Conclusion

17.    We have considered the evidence cumulatively and on balance, we are satisfied that the Appellant did not leave the UK in 2013, 2014, 2016 or 2017. We have considered the Respondent's submissions and are satisfied that the Appellant has provided sufficient evidence to establish he was in the UK during this period. Whilst the medical appointments and postal poll cards of themselves do not establish that the Appellant was present in the UK during the contested periods, when considered cumulatively with the other documents, which were not challenged by the Respondent, the Appellant has established that he was in the UK at these times.

18.    The absence of the Appellant's bank statements, and GP records do not undermine the Appellant's account. He has provided other satisfactory evidence which taken together establishes that he was in the UK. It is significant to note that from 2013 onwards the Appellant has been trying to remain in the UK when the Respondent was contending, he had no right to be in the UK. We find it inherently unlikely that the Appellant would have taken the risk of leaving the UK during this period.

19.    On remaking, the Appellant's appeal is allowed.

Notice of Decision

The appeal is allowed.

We make no fee award because further material was provided by the appellant which was not before the decision-maker.

 

 

H.Athwal

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025

 

Annex (Error of law decision)

 

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-002487 First-tier Tribunal No: HU/63156/2023 LH/02680/2024

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

27 November 2024

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

Between

 

Z H

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation:

For the Appellant: Mr A Pipe, Counsel instructed by J McCarthy Solicitors.

For the Respondent: Mr E Terrell, Senior Presenting Officer.

 

Heard at Field House on 14 October 2024

 

 

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court .

 

 

DECISION AND REASONS

1. The Appellant appeals with the permission of First-tier Tribunal Judge Dainty against the decision of First-tier Tribunal Judge French. By their decision of 29 ^th April 2024, Judge French ('the Judge') dismissed the Appellant's appeal against the Respondent's decision to refuse to his human rights claim.

Background

2. The Appellant is a Bangladeshi national, who submitted an application on the grounds of his private life established in the UK. The Appellant claimed that he had been continuously resident in the UK since March 1999 and thus for a continuous period of at least 20 years.

3. In so far as it is relevant to this decision, the Respondent refused the application on 26 ^th October 2023, first invoking the suitability criteria contained in paragraph S-LTR.1.6 and S-LTR.4.2 of Appendix FM to the Immigration Rules. The Respondent recorded that an earlier application for naturalisation as a British citizen, submitted on 11 ^th July 2012, was refused by the Respondent on 2 ^nd May 2013 because the Appellant - it was alleged - had produced a passport in support of the application, which was found to have contained a counterfeit visa. The Respondent recorded that this action was construed as a deliberate attempt to mislead a government department. Because of this, the Respondent was satisfied that the Appellant's presence in the UK was not conducive to the public good, because his conduct and character made it undesirable to allow him to remain in the UK (paragraph S-LTR.1.6). Furthermore, the Respondent was satisfied that the Appellant had made false representations in a previous application (paragraph S-LTR.4.2).

4. With regards to the substantive criteria under the 20-year long residence rules, the Respondent went on to consider that, because the Appellant had used falsified documents in a previous application, the documents he had provided in support of his current application could not be relied upon as evidence of his continuous residence in the UK. It was not accepted therefore that the Appellant had lived continuously in the UK for at least 20 years.

5. The Appellant duly appealed the Respondent's decision and as part of his written and documentary evidence, as well as his written submissions, the Appellant raised that the Respondent had incorrectly invoked the two suitability criteria. This was in part because the alleged deception had taken place more than 10 years ago.

6. Following the Respondent's review of her decision, the Respondent confirmed in her Review she would no longer be pursuing her decision on grounds of suitability "given that at the time of the decision over 10 years had passed since the allegedly deceitful application was refused on 2 ^nd May 2013". The Respondent was careful to note that she was not conceding the allegation of a falsified documents - just that it had been over 10 years since that was allegedly used. She also noted that the Appellant had accepted in his written evidence that the document he had used had not been genuine. It is appropriate to note here however that the Appellant claimed not to have been aware that the document was false and that he himself had been a victim.

7. With regards to the Appellant's claimed residence and the documentary evidence of the same, the Respondent confirmed in her Review that the grounds of refusal in that respect were maintained but she went on to engage with the Appellant's evidence, which she had not done previously, as briefly summarised above. In response to the Appellant's evidenced, the Respondent stated that the Appellant had not evidenced that he had lived in the UK in 2013, 2014, 2016 or 2017. The Respondent also raised that that there was a concern with regards to the evidence of the Appellant's year of entry into the UK and whether this was in fact 1997 or 1999.

8. The Appellant's appeal was heard in the First-tier Tribunal ('FtT') on 26 ^th April 2024. The Appellant was represented by Mr Pipe of Counsel, who also appeared before me, and the Respondent by a Presenting Officer. The Judge heard oral evidence from the Appellant and the Appellant's brother, as well as submissions from the advocates before reserving their decision.

The Decision of the First-tier Tribunal Judge

9. In their reserved decision at [6], the Judge recorded that the Respondent was no longer pursuing the suitability issues and that the remaining issue was therefore whether the Appellant could demonstrate a continuous period of residence of at least 20 years. The Judge also recorded in the same paragraph the Respondent's Review had identified the years of 2013, 2014, 2016 and 2017 as being the years in dispute, in so far as the Appellant's residence was concerned.

10. The Judge's findings of fact were then set out at [12], where the Judge recorded that the sole issue, they were required to address was whether the Appellant had been continuously resident in the UK for at least 20 years ([12(a)]. Immediately thereafter, at [12(b)] the Judge then found that they had no doubt that the Appellant's application in 2012 was supported by a fraudulent document purporting to contain Indefinite Leave to Remain ('ILR') issued by the Home Office. The judge noted that it was claimed that the Appellant's then representatives had forged this document, but the Judge did not believe that the Appellant could have been ignorant of that because the Appellant knew that he did not have ILR.

11. The Judge's other findings of fact, relevant to this appeal, are at [12(f)], where the Judge found that it was hard to believe that the Appellant was unable to provide any persuasive documentary evidence for the years that the Respondent had disputed, namely 2013, 2014, 2016 and 2017. The Judge went on to state that the only evidence that the Appellant was in the UK for these years was that he claimed to be so. The Judge also concluded that the Appellant was not a reliable witness, and this was largely as a result of their earlier findings of fact and the finding of deception, as summarised above.

The Appeal to the Upper Tribunal

12. In seeking permission to appeal to this Tribunal, the Appellant pursued three grounds of appeal. It was first submitted that the Judge had erred in law as a result of procedural unfairness. The Appellant submitted that since the suitability criteria were no longer in issue, there had been no submissions made at the hearing concerning the alleged dishonesty as part of the Appellant's 2012 application. It was submitted that the Appellant had not been cross-examined on this issue either. It was unfair therefore of the Judge to have reached a finding on something that was not in issue and carrying that finding forward when assessing (adversely) the Appellant's credibility.

13. Secondly, it was submitted that the Judge, having confirmed that the Appellant's brother had given oral evidence before them, had erred in failing to consider this witnesses evidence and in failing to make findings on this evidence. It was submitted that this evidence was material since the witness had confirmed in his written statement that the Appellant had resided with him in his family home. That was in turn relevant to the issue of continuity of residence. It is also clear from the Judge's record of this witness' evidence at [9] that this witness was not cross-examined by the Respondent.

14. Lastly, it was submitted that the Judge had erred at [12(f)] when finding that the Appellant had not sought to submit any documentary evidence to support his claimed residence for the years in dispute other than his own assertions. It was argued that the Judge had failed to consider a supplementary bundle, which had included documentary evidence for those disputed years. Counsel had also taken the Judge through this supplementary bundle in closing submissions and the grounds of appeal helpfully summarised what that documentary evidence consisted of.

15. Permission was granted by First-tier Tribunal Judge Dainty, who considered that the grounds raised arguable errors of law with the Judge considering matters, which fairly appeared from the Review to the Appellant not to be an issue, and in failing to consider or if considering, failing to provide reasons for discounting both witnesses' testimony (the Appellant and the brother) and perhaps more crucially, the documentary evidence relied upon by the Appellant in relation to the disputed years.

16. There was no response before me from the Respondent pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

17. At the start of the hearing, Mr Terrel confirmed that he accepted that the Judge had fallen into error as argued at §6(d) of the Appellant's grounds of appeal and that the error was material. He agreed that the Judge appeared not to have considered documentary evidence that had clearly been admitted and was in evidence before them at the hearing. This concerned the core issue of the Appellant's continuous

residence and the years that had been expressly disputed by the Respondent. I considered Mr Terrel's concession to be fair and properly made. Mr Terrell also agreed that the material error of law in question is sufficient to set aside the entirety of the Judge's decision.

18. In light of the parties' agreement, it is not necessary for me to determine whether the Judge also erred with regards to their consideration of the alleged dishonesty and their findings at [12(b)]. It is appropriate to note however that the Judge's detailed record of the Respondent's cross-examination of the Appellant at the hearing in the FtT did not include any questions being asked of the Appellant relating to his naturalisation application in 2012 and the alleged dishonesty. Whilst the Judge, and Mr Terrell before me, were correct to note that the Respondent had not conceded the issue of whether or not the Appellant had engaged in dishonesty, just the invoking of the suitability criteria, if the cross-examination record at [8] is correct, the Respondent had effectively not challenged the Appellant's written evidence that he had no knowledge of the dishonesty.

19. I am satisfied therefore that the Judge has materially erred in law and the Judge's decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 for the reasons above.

20. Both parties agreed that the fact-finding that remains is sufficiently limited to enable the matter to be retained in the Upper Tribunal for re-making. The sole issue that remains to be determined is whether the Appellant was resident in the UK in 1999 as claimed, in 2013-2014 and in 2016-2017. Having given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal at [7.2], I am satisfied that it is appropriate for the appeal to remain in this Tribunal for re-making.

Notice of Decision

21. The decision of the First-tier Tribunal is set aside.

22. The parties are to have careful regard to the following directions:

(1) The appeal is to be re-listed in the Upper Tribunal before Judge Pinder on the first available date at least four weeks after the date of the sending of this decision on error of law. The provisional time estimate for the hearing should be 2 hours, subject to any alternative view by the parties.

(2) Any further evidence relied on by either party is to be filed and served no later than seven days before the next hearing. The Appellant has permission to rely on the further evidence contained in the Appellant's consolidated bundle filed and served in preparation for the error of law hearing on 14 ^th October 2024 - the Respondent not objecting to the same.

(3) In respect of any other person whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in-chief. Any such further witness statement must be filed and served no later than seven days before the next hearing.

(4) All further evidence relied on by either party must be contained within a consolidated, paginated and indexed bundle.

(5) There must be a skeleton argument on behalf of the Appellant, filed and served no later 7 days before the hearing.

 

 

Sarah Pinder

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 November 2024