Ahmed v Secretary of State for the Home Department

SIR STEPHEN RICHARDS: This case has been listed as JA (Bangladesh), but there is no reason for maintaining anonymity. The Applicant's name is Mr Jubel Ahmed.

The Applicant is a national of Bangladesh who was present in the United Kingdom unlawfully. He applied in October 2009 for leave to remain on Article 8 grounds. The application was refused by a decision letter dated 17 December 2009. Since the Applicant did not have leave at the time of his application, there was no right of appeal against that decision.

It was not until 3 July 2013 that he was served with notice of a decision to remove him. He had a right of appeal against that decision and he exercised the right. His appeal was dismissed by the First‑tier Tribunal (the FTT). A further appeal was dismissed by the Upper Tribunal (the UT).

Permission to appeal to the Court of Appeal was refused by the UT and on the papers by Underhill LJ in this court. The Applicant renews his application for permission through Mr Karim of counsel, whose submissions have been commendably succinct and focused.

The first ground of appeal is to the effect that the FTT erred in law in relation to its credibility findings and that the UT was wrong to find otherwise. The specific contention, as advanced before the UT, is that the FTT judge erred in rejecting the evidence of the Applicant's uncle, a Mr Hoque, on the basis that it contradicted the Applicant's own evidence but without giving reasons for finding that there were contradictions. Mr Karim submits that reasons were completely absent from the FTT's decision.

At paragraph 16 of her determination the FTT judge said that she did not find the Applicant himself to be credible because his statements were glaringly at odds with his oral evidence at the hearing. She also found that his account of his arrival in this country lacked all credibility, being utterly implausible. None of that was challenged on appeal to the UT.

The FTT judge added that there was no evidence other than that of his uncle that the Applicant had been in the United Kingdom for nearly 14 years, as he said he had, and:

On the appeal to the UT, the UT judge described that particular conclusion as "somewhat brusque perhaps", but considered that the FTT judge had been entitled to reach the conclusions she did and that her reasons were adequate. He picked out passages in the Applicant's statements to show that that evidence was a far cry from the uncle's evidence, thus illustrating what the FTT judge had dealt with by way of generalised reference to contradiction. I refer in particular to paragraphs 12 and 13 of the UT's determination.

Mr Karim complains against that background that the FTT decision did not meet the requirements as to reasons set out in MK (Pakistan) [2013] UKUT 641 (IAC). In agreement with Underhill LJ, however, I think that the way the matter was dealt with by the UT does establish the legal adequacy of the FTT's reasons and that the issue raised by this ground does not, in any event, give rise to any important point of principle or practice such as to satisfy the second appeal criteria.

The second ground of appeal is to the effect that the UT should have found a legal error in the FTT's consideration of private life and in its approach to Article 8. The specific contention is that the tribunal failed to consider the Immigration Rules, in particular paragraph 276ADE(vi), as a starting point.

That subparagraph provides that one of the requirements to be met by an applicant for leave to remain on the grounds of private life in the United Kingdom is that at the date of the application the Applicant is aged 18 or over, has lived continuously in the United Kingdom for less than 20 years but:

It is true that the FTT did not consider paragraph 276ADE(vi) as such, but the question is whether it was required to and if so, whether the failure to do so was material.

As to the applicability of the rule, Mr Karim has referred to the timing issues considered in Edgehill [2014] EWCA Civ 402 and Singh [2015] EWCA Civ 74 and the grant of permission to appeal in Thomas [2015] EWCA Civ 856, but I share the doubts expressed by Underhill LJ as to whether any of that line of authority is relevant.

On no view could paragraph 276ADE(vi) apply to decisions taken before the rule came into force, namely 9 July 2012. But the application for leave to remain in this case was made and decided years before that, in 2009. Moreover, the Applicant's appeal to the FTT was not against that 2009 decision but against the July 2013 removal decision, to which paragraph 276ADE(vi) has no obvious direct application.

Moreover, paragraph 276ADE was not relied on before the FTT and, although raised in the UT, was not pressed before that tribunal by counsel then appearing for the Applicant. Although I take Mr Karim's submission that the point was not abandoned in the UT, it is difficult, as it seems to me, to see in those circumstances how the FTT can be said to have erred in law by not dealing with a point or not dealing with it any further than was done.

Even if the point should have been considered by the FTT, I think it clear how that tribunal would have dealt with it. The findings of the FTT, in particular at paragraph 22 of its determination, in my judgment admitted of no sensible possibility that the tribunal would have found the Applicant to have no meaningful ties with Bangladesh so as to satisfy paragraph 276ADE(vi). The conclusion I reach is that that subparagraph takes him nowhere.

In any event, on top of all of this, the issues raised by this second ground cannot be regarded as involving an important point of principle or practice. Finally, there is no other compelling reason why an appeal should be heard in this case.

For all those reasons, I am satisfied that this renewed application for permission must be refused.