THE IMMIGRATION ACTS. On 13 June 2013 On 24 June 2013 Prepared: 14 June Before UPPER TRIBUNAL JUDGE O CONNOR. Between

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1 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Field House Determination Sent On 13 June 2013 On 24 June 2013 Prepared: 14 June 2013 Before UPPER TRIBUNAL JUDGE O CONNOR Between MS ANNABEL OBUNEZI WOLUCHEM and Appellant THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Ms R Chapman, instructed by Visalogic.net For the Respondent: Ms M Tanner, Senior Presenting Officer DETERMINATION AND REASONS 1. The appellant is a citizen of Nigeria born on 18 February She appealed to the First-tier Tribunal against a decision of the respondent, dated 20 December 2012, to remove her from the United Kingdom. 2. The appellant s immigration history is lengthy and is set out in full at paragraph 2 of the First-tier Tribunal s decision. In summary, the appellant arrived in the United Kingdom on 29 October 1999 and, save for the periods identified below, she remained with leave to remain until the 30 August CROWN COPYRIGHT 2013

2 3. The appellant did not have leave to remain here (i) 31 January 2001 and 16 September 2001, [as a consequence of her application on 31 January 2001 being made one day after the expiry of her leave]; (ii) 1 May 2002 until 28 May 2002 [as a consequence of her application of 7 May 2002 having been made seven days after the expiry of her leave]; (iii) between 1 May 2003 and 22 May 2003 [as a consequence of her application of 2 May 2003 having been made two days after the expiry of her leave]; and (iv) 1 November 2006 and 23 October 2007, a period to which I will return later in the determination. 4. On 1 April 2010 the appellant applied for indefinite leave to remain on the basis of her long residence in the United Kingdom, claiming that she had remained here lawfully for ten continuous years. The Secretary of State refused this application on 8 November 2010 and the appellant s appeal against such decision was dismissed by First-tier Tribunal Eldridge in a determination dated 12 January Her appeal rights were eventually exhausted on 11 August 2011, when she was refused permission to appeal to the Court of Appeal. 5. On 29 February 2012 the appellant again applied for leave to remain on the basis of her long residence. This application was refused in a decision of 20 December 2012 and, on the same date, a decision was made to remove the appellant from the United Kingdom. The appellant appealed this decision to the First-tier Tribunal. 6. First-tier Tribunal Judge Robinson heard the appeal on 27 March 2013 and dismissed it on all grounds in a determination promulgated on 15 April By way of a decision dated 7 May 2013 First-tier Tribunal Judge Hemingway granted the appellant permission to appeal against the decision of the First-tier Tribunal in the following terms: 2. The grounds of application assert that the judge erred in these ways: a) failing to apply the long residence policy which was said to sit alongside the Immigration Rules and which had been raised in the appellant s skeleton argument; b) failing to determine the appeal with respect to Article 8 under the Immigration Rules; c) failing to make it clear what weight was being accorded to the public interest on the facts of this case; d) making findings against the weight of the evidence with respect to the appellant s family links to her home country. 3. It is arguable the judge erred in failing to consider the terms of the policy. It is arguable the judge erred in failing to take into account corroborative oral evidence in a previous positive adverse credibility finding before reaching conclusions as to the strength of family links with the home country. 4. All the grounds may be argued but the appellant may be in some difficulty in pursuing the contention under the Rules with respect to Article 8 bearing in mind that Counsel appeared to have argued 2

3 successfully, in the skeleton argument and in oral submissions, that the Rules had no application (paragraph 17 of the determination). 5. Permission to appeal is granted. 8. Thus the appeal came before me. 9. At the outset of her submissions Ms Chapman quite properly accepted that she would be unable to make out the arguable errors identified in paragraphs 2(b) and 2(c) of the grant of permission. For the sake of completeness, I make clear that I have in any event considered those grounds for myself and conclude that they do not identify an error of law such as to require the First-tier Tribunal s determination to be set aside. It is plain that the appellant cannot meet the requirements of the Immigration Rules relating to Article 8. Firstly the family life provisions under the Immigration Rules are not engaged because the appellant cannot meet the requirements of paragraph GEN 1.2. This is so because as of the date of her application she had not lived with her partner for two years. In any event she cannot meet the requirements of paragraph E- LTRP.1.10 of the Rules, the First-tier Tribunal having concluded that she had not established that she intended to live permanently in the United Kingdom with her partner. Neither can she meet paragraph E-LTRP.2.2 of Rules, as an individual who is in the United Kingdom in breach of the immigration laws. As to the question of whether the First-tier Tribunal treated the weight to be attached to the public interest as a fixity, there is nothing in the determination which leads me to find that it did. 10. I now turn to consider the 2 grounds that were pursued with some vigour by Ms Chapman. 11. It was submitted that the First-tier Tribunal erred in failing to determine whether the Secretary of State had considered the exercise of her discretion under a long residence policy contained within Immigration Directorate Instructions issued on 13 December Ms Chapman observed that the Counsel who had appeared for the appellant before the First-tier Tribunal (not Ms Chapman) had specifically addressed this matter at paragraph 6 of his skeleton argument in the following terms: 6. The Grounds of Appeal (7) refer to the Immigration Directorate Instructions (IDIs) for December 2012 as containing a discretion (P.22/71). The policy is dated 30/12/12 and therefore came into existence before the immigration decision. For an earlier instance where Immigration Rules on long residence coexisted with a policy concession see SA (Long residence concession) Bangladesh [2009] UKAIT This discretion for breaks in lawful residence says that caseworkers must always discuss the use of discretion with a SCW and must be satisfied that the applicant has acted lawfully throughout the whole ten year period and has made every effort to obey the Immigration Rules. The policy further states of multiple gaps in lawful residence (P.23/71) that it may be appropriate to exercise discretion if an applicant has had multiple gaps in leave that have been caused by events outside their control. 3

4 12. In response Ms Tanner submitted that the Secretary of State had implicitly considered the exercise of discretion during the course of her most recent refusal letter, and that the First-tier Tribunal had accepted that this was so. 13. Neither the First-tier Tribunal nor the Upper Tribunal were provided with a copy of the policy relied upon by the appellant. Ms Chapman provided the Upper Tribunal with a copy of the terms of later guidance, issued on 20 May 2013; noting as she did so that the instructions from 13 December 2012 are no longer contained on the respondent s website. 14. The terms of the 20 May 2013 instructions are as follows: Gap(s) in lawful residence You may grant the application if an applicant: has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days, and meets all the other requirements for lawful residence. You can use your judgment and use discretion in cases where there may be exceptional reasons why a single application was made more than 28 days out of time. For example, exceptional reasons can be used for cases where there is: a postal strike, hospitalisation, or an administrative error made by the Home Office. 15. Ms Chapman submits that the instructions from 13 December 2012 are highly likely to have been in the exact same terms as the current instructions, relying on the above cited passage from paragraph 6 of the appellant s skeleton argument before the First-tier Tribunal when doing so. 16. Even if it is assumed for the purposes of this determination that there was in place, as of the date of the Secretary of State s consideration of the appellant s application in the instant case, an Immigration Directorate Instruction in the same or materially similar terms to that which currently exists I, nevertheless, do not accept that the Secretary of State s decision of the 20 December 2012 was made otherwise in accordance with the law. Nor do I accept that the First-tier Tribunal s determination contains an error on a point of law capable of affecting the outcome of the appeal before it. 17. The appellant s most recent application was made against the backdrop of an identical application having been refused by the Secretary of State in November 2010 and the appeal against such refusal thereafter being dismissed. 4

5 18. In his determination First-tier Tribunal Judge Robinson cited in their entirety paragraphs 14 to 19 of the determination of IJ Eldridge from January In paragraph 19 of his determination Judge Eldridge reasoned and concluded as follows: 19. I was initially surprised by the stance taken by Mr Archie in respect of the three periods of delay. The Immigration Directorate s Instructions (IDIs) of April 2009 suggest that where there are as many as three short breaks due to late application then an application for settlement under paragraph 276D should not normally be granted, whereas a single short period would often lead to a grant. Nevertheless, the stance in this case was made clear, and, of course the total period of lateness for the three shorter periods was only ten days when aggregated. The longer period is almost six months. I find there is no question, on the facts as I have found them, of the respondent having failed to apply discretion outside the Rules that has captured by her IDI. The periods are simply too numerous and one of them at least too long. 19. It was against this background that the Secretary of State concluded as follows in her most recent refusal letter of 20 December 2012 [emphasis added]: It is understood you advised that you submitted your passport in the 20/9/06 application but we could find no trace of ever having received it and rejected the application. You re-applied on 19/10/06 still advising you had submitted your passport however we maintained we could find no trace of ever having received it, and you had no enrolment evidence so your application was again rejected and we advised you to report the passport as lost to the police and obtain another. You advised that you obtained another in December 2006 but your next application was not submitted until 9/5/07 and was out of time as advised above with no reasonable explanation given you had a new passport in December In light of the reasons given above you have failed to demonstrate ten years continuous lawful residence in the UK. 20. Ms Chapman submits that the aforementioned paragraph in the Secretary of State s refusal letter is entirely neutral and cannot be read as the Secretary of State considering the exercise of her discretion. I do not accept that this is so. I my conclusion the Secretary of State plainly undertook a qualitative analysis therein of the reasons given by the appellant for the delay in making the application of May Having done so she decided that the explanation was not reasonable and that consequently the appellant could not demonstrate that she had ten years continuous lawful residence in the United Kingdom. The fact that such qualitative analysis was undertaken demonstrates, I find, that the Secretary of State gave consideration to exercising discretion to grant outwith the Rules; the appellant clearly not meeting the requirements of the Rules given the four breaks in her continuous leave and the Rules themselves containing no provision for the exercise of discretion. 5

6 21. Whilst it is correct to say that the First-tier Tribunal made no direct comment in its determination in relation to the aforementioned paragraph in the Secretary of State s refusal letter, it did conclude that there were no reasons to depart from the findings of Immigration Judge Eldridge which, of course, included the finding that there was no question of the respondent having failed to consider the exercise of discretion outside the Rules. This, in the context of the instant case, was, in my conclusion, sufficient to dispose of the appellant s submissions. 22. In any event, even if it could be established that the First-tier Tribunal erred in law in failing to engage with the submission that the Secretary of State s decision was not in accordance with the law, such error was not capable of affecting the outcome of the appeal in light of my finding above that the Secretary of State did consider the exercise of her discretion to grant leave outside the Rules. 23. I now turn to the second ground pursued by the appellant before the Upper Tribunal, i.e. that the First-tier Tribunal s conclusions made in relation to appellant s family ties to Nigeria were perverse and not supported by the evidence. 24. Ms Chapman drew the Upper Tribunal s attention to the record of evidence set out in paragraphs 6 and 10 of the First-tier Tribunal s determination, as well at that detailed in paragraph 10 of the appellant s witness statement, where the appellant stated as follows: After my graduation in 2006 communication between my family and I stopped completely, I guess they think their work with my education and possibly my life is over. It has been almost fourteen years and I have no contact with any friends in Nigeria. 25. Ms Chapman further drew attention to the evidence of a Ms Hope Mabinton, and also to evidence given by the appellant s partner, which is recorded in paragraph 10 of the determination in the following terms: Asked about her family he replied that her family did not wish to have anything to do with her. 26. At paragraph 34 of its determination the First-tier Tribunal concluded as follows: I am satisfied from the evidence before me that the appellant s account of her immigration history set out in her written statement is accurate. I find that her claim that she has no ties with the family members in Nigeria is doubtful. She claims that she was cut off by her family and blames her stepmother for this. Nevertheless her father continued to support her throughout her studies. This suggests she has a closer relationship with her father than she admits 27. The Tribunal further conclude as follows in paragraphs 38 and 41 of the determination: 6

7 [38] I take the view that the appellant was honest in her account of her immigration history but that she has overstated the lack of ties with her family. It is clear that her father financed her studies. And at paragraph 41: As I have stated above, I consider that their relationship, although genuine, is not necessarily a permanent one. In all the circumstances of this case I find it would not be unreasonable to expect the appellant to return to Nigeria. I do not accept that she could not obtain work there. I take the view that she would have a good chance to obtain paid employment on the basis of her qualifications and work experience she has obtained in the United Kingdom. I have taken into account that the appellant s father lives in Nigeria and although the appellant claims he has abandoned her, he did support her studies for several years. The appellant is familiar with Nigeria and was brought up there. It appears to me that she does have family members and contacts to whom she could turn if she needed help and support. 28. The core of Ms Chapman s submission is that it was perverse to conclude that the appellant has family members to whom she could turn for assistance in Nigeria, given that the entirety of the evidence before the tribunal was that the appellant s communication with her family had ended in In my conclusion, although the reasoning of the First-tier Tribunal on this issue is somewhat compressed, its conclusions were open to it for the reasons it gave. I do not accept, as Ms Chapman submits I should, that the only conclusion to be derived from the appellant s evidence is that her father stopped funding her studies in At paragraph 8 of its determination the First-tier Tribunal record the appellant s evidence in the following terms: even when she ceased having contact with him [this being a reference to the appellant s father] he continued to sponsor her. At paragraph 33 of the determination the following is stated: She accepts that her father sponsored her financially throughout her studies. 30. It is not disputed that the appellant ceased studying in August In my conclusion it was open to the First-tier Tribunal, on the evidence before it, to conclude that the appellant s father had financially sponsored her studies until that date. In such circumstances I also find it open to the tribunal to conclude, as it did at paragraph 34 of the determination, that the fact that the appellant s father continued to support her studies up until August 2010 casts doubt on her evidence that she lost all ties to her family members in For this reason I do not accept the First-tier Tribunal erred in the manner claimed. 32. If I am wrong in this conclusion I, nevertheless, find that such error was not capable of affecting the outcome of this appeal. In doing so I find it significant that the First-tier Tribunal concluded that upon return to Nigeria the appellant would be able obtain paid employment, given her 7

8 qualifications and work experience in the United Kingdom; it being observed in paragraph 41 of the determination, that if the appellant needed help and support she would have family members and contacts in Nigeria to whom she could turn. The First-tier Tribunal also deal comprehensively with other matters relevant to the consideration of the issue of proportionality; taking into account the length of the appellant s stay in the United Kingdom, her original purpose in coming to the United Kingdom, the fact that her studies have now come to an end, her medical circumstances and its earlier conclusion that the appellant had not demonstrated that she and her partner intend to live permanently together in the United Kingdom. 33. When looked at as a whole the First-tier Tribunal s determination contains clear, cogent and rational reasons as to why the appellant s appeal was dismissed. The First-tier Tribunal s conclusions were open to it on the available evidence. 34. For all the reasons given above I find that the First-tier Tribunal s determination does not contain an error on a point of law such that it ought to be set aside. Decision For the reasons given above, the First-tier Tribunal s determination is to remain standing. The appellant s appeal is dismissed. Signed: Upper Tribunal Judge O Connor Date: 21 June

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