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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/04601/2016;

HU/02370/2016

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
on 29 November 2017	on 30 November 2017

 

Before

 

UPPER TRIBUNAL JUDGE blum

 

 

Between

 

BABARALY FAIZELL SAYED

(anonymity direction not MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr D Jones, Counsel, instructed by Westkin Associates

For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              This is an appeal against the decision of Judge of the First-tier Tribunal Andrew (the judge), promulgated on 7 March 2017, in which she concluded that the Appellant did not have a right of appeal in respect of two separate decisions cancelling his leave to enter the UK, the first dated 15 January 2015, the second dated 31 January 2015.

 

2.              The Upper Tribunal can entertain the appeals on the principles established in Abiyat and others (rights of appeal) Iran [2011] UKUT 314 (IAC).

 

Factual Background

 

3.              The Appellant is a national of India, date of birth 26 April 1984. He first entered UK as a student on or around 7 September 2006. He was granted further leave to remain until 31 October 2010. On the 2 October 2010 he applied for a Certificate of Approval to get married, but this was refused on 29 November 2010. On 30 October 2010, he made an in-time application for leave to remain as a student. According to the Respondent the Appellant failed to pay the fee for this application as his card payment was declined by the card provider. The decision rejecting the application on the basis that it was invalid was made on 11 January 2011. It is acknowledged by the Respondent that the Appellant did not receive this invalidity letter as it appeared to have been lost in the post. There is some evidence, as detailed in the GCID Case Record Sheets, that the Appellant contacted the Home Office inquiring why there had not yet been a decision made in respect of his application.

 

4.              The Appellant maintains that he met his fiancée on 1 July 2012 when he was present in the UK as a Tier 4 (General) Student. He claims to have left the UK on 9 July 2015. On 6 October 2015 he applied for entry clearance as a fiancé under Appendix FM of the immigration rules. He was granted entry clearance on 1 December 2015. On entry to the UK on 5 December 2015 the Appellant was interviewed. According to the Respondent the Appellant claimed that a previous representative said he "could get someone to marry" him in 2010. The Appellant refused this offer but the Certificate of Approval application was made without his consent.

 

5.              The Respondent did not believe the Appellant told the truth when, in respect of his entry clearance application as a fiancé, he claimed that they met in July 2012 when he had leave to remain as a Tier 4 (General) Student. The Respondent considered that the Appellant had no leave to from 31 October 2010 until left in July 2015, and that he was aware that he had no leave. She therefore issued him a notice of cancellation of leave to enter on 15 January 2016. The Appellant sought an Administrative Review of this decision. The decision was also accompanied by a 'One-Stop Warning' served under s.120 of the Nationality, Immigration and Asylum Act 2002.

 

6.              On 21 January 2016, in response to the s.120 Notice, the Appellant issued to the Respondent a 'Statement of Additional Grounds'. Ground 3 contended that the application to join his fiancé in the UK was a human rights claim and that he should have been given a right of appeal in respect of the cancellation decision. On the same day, the Appellant lodged an appeal (HU/02370/2016) with the First-tier Tribunal.

 

7.              In an Administrative Review decision dated 31 January 2016 the Respondent maintained her decision but found that the original reasons for the cancellation were incomplete and had to be changed. The Respondent therefore issued a further decision, also dated 31 January 2016, which additionally relied on the inconsistency between the account given by the Appellant in his interview on 5 December 2015, relating to the Certificate of Approval for marriage, and the submissions in his entry clearance application where he claimed that his relationship with his previous fiancé had 'broken down'. The Administrative Review concluded that the Appellant did not have a right of appeal as he had not made a human rights claim.

 

8.              The Appellant nevertheless lodged another appeal (HU/04601/2016) with the First-tier Tribunal. On 8 February 2016 the Duty Judge issued a letter in respect of appeal HU/02370/2016 requesting that the Appellant provide a copy of the human rights claim referred to in his grounds within 5 working days. It is not clear to me whether there was a response to this letter. Both appeals however appear to have passed the Duty Judge 'screening process' and were listed for hearing on 2 March 2017.

 

The decision of the First-tier Tribunal

 

9.              At the hearing, the Presenting Officer submitted that there was no right of appeal as the Appellant was appealing against cancellation decisions and had not made a human rights application. It was submitted on behalf of the Appellant that the section 120 notices contained human rights claims and that there had been an implied human rights aspect of the fiancé entry clearance application.

 

10.          The judge concluded that there was no right of appeal. The judge correctly noted that rights of appeal were only attached to decisions that amounted to refusals of human rights or protection claims. It was common ground that the Appellant had not made a protection claim. The judge concluded that the Appellant did not make a human rights claim, and relied on the authority of Ali v SSHD [2013] EWCA Civ 1198 in which it was found that a fresh ground of appeal or statement in a response to a section 120 notice was not an application. The judge concluded that the human rights claim made in the section 120 notice was not an application. The judge additionally noted that it was not one that had ever been specifically refused by the Respondent.

The grounds of appeal and the error of law hearing

 

11.          The grounds argued that the section 120 notice raised article 8 considerations and that he had a right of appeal. It was submitted that Ali related to the raising of new points in a PBS application and did not concern human rights claims.

12.          In granting permission judge of the First-tier Tribunal L Murray said it was arguable that the Appellant made a human rights claim within the meaning of Alighanbari, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) and jurisdiction should not have been declined.

 

13.          There was substantial agreement between both parties at the error of law hearing that a human rights claim had been made and that the cancellation decision dated 31 January 2016 amounted to a refusal of a human rights claim. Mr Bramble, on behalf of the Respondent, accepted that the Appellant's response to the section 120 notice, dated 21 January 2016, raised article 8 at ground 3. He accepted that, in her decision dated 31 January 2016, the decision-maker had before her a human rights claim. Although the Administrative Review decision, also dated 31 January 2016, maintained there was no human rights claim, and Explanatory Statement prepared in respect of the cancellation decisions did engage with the article 8 points raised by the Appellant and effectively amounted to a refusal on human rights grounds.

 

14.          Having studied the Explanatory Statement prepared on 1 March 2017, which clarified the nature of the Cancellation of Leave to Enter decision dated 31 January 2016, and having proper regard to the common ground between the parties, I indicated that I was satisfied that the judge did have a human rights claim before her and that she materially erred in law in concluding there was no right of appeal.

 

Discussion

 

15.          Sections 113 Nationality, Immigration and Asylum Act 2002 states,

 

"human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom [ or to refuse him entry into the United Kingdom] would be unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Convention) . . .

 

16.          The Respondent's Guidance on 'Rights of Appeal' indicates that a fiancé application does constitute a human rights claim. The Appellant's application for entry clearance as a fiancé was however granted and that entry clearance had effect as leave to enter the UK. Once a final decision was made in respect of entry clearance/human rights claim, the claim ceased to be a claim because it had been resolved. It would do violence to the natural meaning of the word "claim", and the definition contained in s.113, if, after a final decision was made in respect of it, it continued to have effect. The decision cancelling the Appellant's leave to enter dated 15 January 2016 was not made in response to any extant human rights claim. It therefore did not constitute a refusal of a human rights claim. The appeal lodged in respect of this decision (HU/02370/2016) was not a valid appeal.

 

17.          The Respondent however issued a section 120 notice in respect of her cancellation decision and, on 21 January 2016, the Appellant's 'Statement of Additional Grounds' raised, in Ground 3, what has been accepted by the Respondent to amount to a human rights claim. Mr Bramble specifically accepted that, by the 31 January 2016, the Respondent had a human rights claim before her. The Respondent issued a further Cancellation of Leave to Enter decision on 31 January 2016. By reference to and incorporation of the Explanatory Statement, the Respondent specifically engaged with the human rights challenge mounted by the Appellant. It was accepted by Mr Bramble that the Explanatory Statement, read in conjunction with the Cancellation of Leave to Enter, constituted a refusal of a human rights claim within the scope of s.82 of the Nationality, Immigration and Asylum Act 2002. It was therefore conceded by the Respondent that, at least in respect of the Cancellation of Leave to Enter decision dated 31 January 2016, this was an appealable decision.

 

18.          Although I did not hear submissions on the point I am satisfied that the judge's reliance on Ali was inappropriate as this case did not deal with human rights claims, and the judge appears to have conflated a human rights claim with the issue that was under consideration Ali, which was whether an application could be made in a response to a section 120 notice. In any event, the human rights claim is conceptually separate from an application under the immigration rules.

 

19.          For the above reasons, I am satisfied there is no valid appeal respect to the reference HU/02370/2016, but I am satisfied there is a valid appeal under the reference HU/04601/2016.

 

 

Notice of Decision

 

There is no valid appeal in respect of HU/02370/2016

 

There IS a valid appeal in respect of HU/04601/2016

 

HU/04601/2016 is remitted back to the First-tier Tribunal for substantive consideration, to be considered by a judge other than judge of the First-tier Tribunal Andrew.

 

29 November 2017

 

Signed Date

Upper Tribunal Judge Blum