SAB v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Appellants are citizens of Ghana. The first Appellant (“the Appellant”) was born on 20 December 1970 and his wife and son (the second and third-named Appellants) are dependants to his appeal.

The Appellant’s application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant was refused on 22 April 2010. On that date, a decision was in fact made to curtail the leave of all three Appellants to remain in the United Kingdom on the ground that the Appellant had failed to comply with the conditions attached to the grant of his leave to remain. Therefore a decision was made to vary the Appellant’s and his dependants’ leave to remain in the United Kingdom so that he and his dependants had no leave remaining with reference to paragraph 323(ii) of HC 395 (as amended).

The Appellant’s appeal was heard before Immigration Judge Prior who, sitting at Hatton Cross on 2 September 2010 dismissed the appeal on immigration and human rights (Article 8 of the ECHR) grounds.

The Appellant’s application for permission to appeal was however granted by Senior Immigration Judge Poole who noting that the grounds of application simply referred to the Appellant’s Article 8 rights, considered that the Immigration Judge had failed to properly deal with those rights in relation to which it was noted that grounds cited the guidance of the Upper Tribunal in CDS (PBS: ‘available’: Article 8) Brazil [2010] UKUT 00305.

SIJ Poole continued that an examination of the Immigration Judge’s determination did show that the IJ had dealt with the Appellant’s Article 8 appeal but that it was “arguable that he first failed to properly deal with the Appellant’s private life and the issue regarding the Appellant completing his course”.

The Respondent responded to the grounds of appeal under the provisions of Rule 24 in a letter dated 20 October 2010. It was considered that the Immigration Judge had “directed himself appropriately”. He had made clear findings on the Appellant’s Article 8 appeal. There was in particular a finding at paragraph 9 of the determination that it was not necessary for the Appellant to remain in the United Kingdom to complete his PhD as it might be possible for him to “utilise the various forms of highly effective modern means of communication” for contact with the Director of Studies.

The letter continued that it was also significant to note that the Immigration Judge had made a finding that the Appellant made a “serious and long-term breach” of the conditions attached to his visa.

Further at paragraph 9 of his determination the Immigration Judge found “in some weeks of the term time the Appellant had worked hugely in the excess of twenty hours per week”. It was therefore arguable whether the Appellant’s desire to remain in the United Kingdom was to complete the purpose of his studies or whether to take full-time employment in the United Kingdom contrary to the conditions of his visa.

The grounds of application that the Respondent challenged contended that the Immigration Judge had erred in his treatment of the Appellant’s Article 8 rights. Reference was made to Huang [2007] UKHL 11 where the House of Lords had indicated that an applicant in certain cases might fail to qualify under the Immigration Rules and yet might have a valid claim by virtue of Article 8. It was that Article 8 claim that it was contended the Immigration Judge “failed to properly evaluate”.

Reference was made to paragraph 11 of the Immigration Judge’s determination where he concluded that the Appellant entered the United Kingdom aged 34 and that he had been in the United Kingdom for only five and a half years and therefore it would not be disproportionate to remove him and his family from the United Kingdom for lack of private life rights. It was submitted that the Immigration Judge had erred. In CDS the Upper Tribunal had concluded at paragraph 19 that:

“… people who had been admitted on a course of study at a recognised UK institution for a higher education, are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect because the person has been admitted for this purpose, the purpose remains unfulfilled…”.

It was submitted in the Appellant’s case, he had submitted his thesis and was waiting to defend it. To require him to leave the United Kingdom at this stage when he was almost at the end of a long journey to obtain his professional recognition would amount to a breach of his private life rights. That error had prejudiced the Appellant.

The first issue before me was whether the Immigration Judge made a material error of law that being an error of law that affected his decision on the appeal.

Having heard the respective parties’ submissions I reserved my determination.

I have concluded that the Immigration Judge did not materially err in law.

No challenge has been raised to the Immigration Judge’s reasons for concluding that the Appellant’s immigration appeal should be dismissed.

In that regard it was the Appellant’s evidence that he had worked as a specialist bio-medical scientist at the Haematology Department at Northwick Park Hospital since May 2007 and had undertaken inter alia the testing and analysis of blood samples. The Appellant had entered into a contract of employment committed to the standard twenty hours per week.

The Immigration Judge noted the appellant’s evidence that the work he had undertaken was “demand led” and as a result of the level of demand and periodic shortages in staff resources the Appellant had worked in excess of twenty hours a week. The Appellant could not recall when he first began to do so, but admitted that his payslips for the period February 2009 to January 2010 were not inaccurate in the picture they presented of excessive hours of employment.

At paragraph 8 of his determination the Immigration Judge had this to say:

“In his testimony as to the precise, accurate, interpretation to be made of the details of those payslips and as to the need for him to be in the United Kingdom to complete his PhD had you finished the research necessary for the writing of his thesis, I found the First Appellant to be evasive and obfuscatory”.

The Immigration Judge continued at paragraph 9:

“The first Appellant suggested that his payslips should be so interpreted as to adjust downward the figure for the hours worked recorded excess the standard twenty hour per week, since they had been overstated to account for the fact that the additional rate of pay attributable to them for unsocial hours had not been taken into account. This interpretation was not, in my view, correct since it did not take into account the further pay awarded, at the standard rate, for hours – no doubt additional hours – undertaken during the night, Saturday or Sunday. It was very clear that in some weeks of the term time the Appellant had worked hugely in excess of twenty hours. The first Appellant maintained that he needed to remain in the United Kingdom in order to be in physical contact with his Director of Studies while he wrote up his thesis. I found that unqualified claim to be highly implausible suggesting as it did, complete inflexibility on the part of the Director of Studies and a refusal to utilise the various forms of highly effective modern means of communication. I did accept, on the other hand, that the first Appellant might need to be in the United Kingdom for his viva, however I considered it unlikely, if that was indeed so, that he would be denied a visitor’s visa”.

At paragraph 10 of the determination the Immigration Judge continued:

“10.

I found that the first Appellant had been in knowing, serious and long-term breach of the conditions subject to which his leave to remain in the United Kingdom as a student had been granted. I formed the strong impression from the first Appellant’s conduct and testimony that it was his remunerative employment in the United Kingdom that drove his desire to remain in the country”.

I would pause there because Mr Akohene took issue with the final sentence of paragraph 9 in which the Immigration Judge had opined were it necessary for the first Appellant to be in the United Kingdom for his viva, he considered it unlikely that the Appellant would be denied a visitor’s visa. He submitted that such an opinion was based on pure speculation. Further it was Mr Akohene’s instructions the Appellant would have to be in the United Kingdom to receive his viva in person. In any event, contrary to the Immigration Judge’s view it would be highly unlikely that the Appellant would be granted a visitor’s visa.

It was notable that neither in the grounds of application nor in his submissions before me did Mr Akohene challenge the Immigration Judge’s reasoned conclusions set out at paragraph 10 of his determination (above).

The Immigration Judge continued at paragraph 11 as follows:

“The first Appellant had come to the United Kingdom with no expectation to remain in the country beyond the period of his studies. The first Appellant came to the United Kingdom at the age of 34 and therefore his private life outside the United Kingdom had been conducted very much longer than that concluded in the United Kingdom over a period of five and a half years. I concluded that it would not be a disproportionate interference with his private life for the first Appellant, together with his family, to be removed from the United Kingdom in pursuit of the public interest in immigration control.”

Mr Akohene took issue with that reasoning.

He placed reliance on the guidance of the Tribunal in CDS. Although he appreciated and accepted that neither the representatives before the Immigration Judge had drawn this decision to the Immigration Judge’s attention it was a decision that predated the promulgation of the determination in the present case and was in the public realm. The Immigration Judge should have been aware of its promulgation and of the Tribunal’s guidance therein.

Mr Akohene referred me to paragraph 16 of CDS in which reference was made to the decision of the Court of Appeal in Pankina [2010] EWCA Civ 719 and in particular paragraphs 45, 46 and 47 which Sedley LJ gave the leading judgment recognised:

“45.

There appears to me in this situation to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants’ Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.

46.

That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is in order for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant’s ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some commonsense about this if it is not to make decisions which disproportionately deny respect for the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the Rules to be black letter law, she needs to achieve this by an established legislative route.

47.

So long as the Rules are what the Immigration Act 1971 says they are, they must in my judgment be operated in conformity with s.6 of the Human Rights Act”.

I was also referred to paragraph 19 of CDS:

“19.

Nevertheless people who have been admitted on a course of study at a recognised UK institution for higher education, are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life but deserves respect because the person has been admitted for this purpose, the purpose remains unfilled, and discretionary factors such as mis-representation or criminal conduct had not provided grounds for refusal of extension or curtailment of stay”.

Having been referred to those passages I drew to Mr Akohene’s attention paragraphs 17 and 18 of CDS:

“17.

It is apparent from these principles that Article 8 does not provide a general discretion in the IJ to dispense with requirements of the Immigration Rules merely because the way that they impact in an individual case may appear to be unduly harsh. The present context is not in respect of family life that can in certain circumstances require admission to or extension of stay within the United Kingdom of those who do not comply with the general Immigration Rules. It is difficult to imagine how the private life of someone with no prior nexus to the United Kingdom would require admission outside the Rules for the purpose of study. There is no human right to come to the United Kingdom for education or other purposes through the voluntary migration.

18.

However the Appellant has been admitted to the UK for the purpose of higher education and has made progress enabling extension of stay in that capacity since her admission in 2007. We acknowledge that that gives no right of expectation of extension of stay irrespective of the provisions of the Immigration Rules at the time of the relevant decision on extension”.

I also drew to Mr Akohene’s attention paragraph 20 of CDS:

“20.

In the present case a change in the sponsorship rules during the course of a period of study has had a serious effect on the ability of the Appellant to conclude her course of study. Some requirements of the Immigration Rules or applicable public policy scheme may be of such importance that a miss is as good as a mile, but this is not always the case”.

I observed that the Tribunal had gone on to consider the aims of the points-based system and at paragraph 21 continued:

“If we are wrong on our first conclusion, we shall here assume that it may also set strict criteria as to how such availability of such funds is to be demonstrated and whose accounts the funds may be. Where the Appellant establishes by evidence that she has funds available to support her if needed, the strength of the public interest in refusing her an extension based on somewhat arbitrary provisions of guidance attached to an Appendix to the Rules, is in our judgment somewhat less than the failure to meet essential requirement of the Rules”.

The Tribunal continued at paragraph 22:

“But even central requirements are not determinative if the countervailing claim is of sufficient weight. Mrs Huang could not meet the dependent relative Rules because she had not reached the minimum age required, but nevertheless the particular circumstances of her history required the strength of her family life to be taken into account. Sedley LJ in Pankina contemplated that some points-based claimants may not meet the minimum funding requirement for a short period due to unforeseen circumstances”.

The Tribunal in CDS noted that the same Sponsors who ensured that the Appellant had sufficient funds at the beginning of her course were available with ample financial support to ensure that she met the substantive requirements of Appendix C in order to continue with her studies. The Tribunal continued:

“If minds had been applied to the problem the necessary funds could have been transferred to her account so both the letter and the purpose of the Policy Guidance was met.

It was on that basis that the Tribunal allowed the appeal “on this basis as well”.

I asked Mr Akohene having placed the case law on which we relied in its proper context, that it was not clear that in both Pankina and CDS the court had in mind those who technically infringe the Immigration Rules but that in terms of their private life and the extent of their studies, demonstrated that it would be disproportionate to remove them. However in the present case and as found for the unchallenged reasons given by the Immigration Judge, there was a flagrant breach of the Rules.

To this, Mr Akohene responded “I say there is no distinction”. Mr Akohene continued Pankina had considered the ties that had been built up as in the case of the Appellant in the present case and the possible consequences and the potential consequences of not being able to complete the course that the Appellant had envisaged from the start.

Mr Akohene told me that he was unsure whether a visa be completed outside of the jurisdiction and submitted that the Immigration Judge should have considered whether if the Appellant was removed to Ghana there was any realistic likelihood of his being able to return to complete his viva.

It was said Mr Akohene “a balancing act”. The Immigration Judge had speculated about the Appellant’s chances of success in obtaining a visitor’s visa.

At this stage in the hearing the Appellant suddenly produced a purported letter from his university dated 22 November 2010 (the day before the hearing before me) from a Professor J Inal confirming that the Appellant was in the final year of his PhD studies under his supervision and that the Appellant had completed his oratory work, and handed in his thesis and was currently awaiting his viva voce. It was envisaged that after the viva the Appellant would be asked to make corrections. A three month period was given to submit a corrected thesis.

I pointed out to Mr Akohene and he accepted that this letter was obviously not before the Immigration Judge in time for his consideration. If such evidence was considered relevant to the appeal before the Immigration Judge then it should have been produced at the time. Further an Immigration Judge’s failure to consider future evidence could not constitute a material error of law. This was accepted by Mr Akohene.

CDS and Pankina are cases concerning those who have not flouted the Immigration Rules. Indeed in CDS the Tribunal were clear Article 8 did not give an Immigration Judge a free-standing liberty to depart from the Immigration Rules and that it was unlikely that a person would be able to show an Article 8 right by coming to the United Kingdom for temporary purposes. A person who was admitted to follow a course that has not yet ended might build up a private life that deserve respect in which case the public interest in removal before the end of the course might “be reduced” in circumstances where there are ample financial resources available. Such was the case of the Appellant in CDS and also in Pankina. These were Appellants whose Article 8 appeals succeeded in private life terms because their breaches of the relevant Immigration Rules were technical (e.g. failure to meet the minimum funding requirements for a short period due to unforeseen circumstances) such that to prevent such persons completing their courses would amount to a disproportionate interference with their private life that deserve respect as long as they continue to meet the other requirements of the Rules and made appropriate progress in their course of studies in the United Kingdom.

However the circumstances of the present case are far removed from some minor technical infringement of the Rules. I do not agree with Mr Akohene that the guidance in those cases drew no distinction in minor technical infringements and serious breaches of the Immigration Rules. Indeed if there were no such distinction it would seriously impact upon the public interest which is part of the balancing exercise in determining the proportionality of removal.

In that regard I would agree with Mr Gulvin who rightly submitted that where there was only a technical breach nothing that seriously offended the Immigration Rules then the public interest, not a fixity, was not a stronger consideration as it otherwise might be, but that in a case like this the public interest was considerable, not least because this Appellant had committed a serious and long-term breach.

Indeed I would observe that at paragraph 10 of his determination the Immigration Judge had “formed the strong impression from the first Appellant’s conduct and testimony that it was his remunerative employment in the United Kingdom that drove his desire to remain in the country”. This was an observation not challenged by the Appellant in his present grounds of application.

The maintenance of immigration control is an extremely strong public interest so that the respect that quite properly the Tribunal considered in CDS was stressed to be an important factor in the necessary balancing exercise to be conducted. In the case of the Appellant in CDS the infringement of the Immigration Rules was technical and minor although the public interest in the Appellant’s removal before he had completed his course was to be reduced. It is however my finding that the public interest was not reduced in the circumstances of the present case and that the weight to attach to the public interest was to the contrary, increased as a consequence of the conduct of the Appellant.

The Immigration Judge had by no means ignored the Article 8 private life issues raised in this appeal. Indeed at paragraph 11 of his determination it was clear he had considered the positive elements of the Appellant’s private life within the balancing exercise that he conducted. In so doing the Immigration Judge noted the Appellant had come to the United Kingdom at the age of 34 and that “therefore his private life outside the United Kingdom had been conducted very much longer than that conducted in the United Kingdom over a period of five and a half years”.

Unlike the Appellant in CDS there was contemplation of the reduced public interest, that interest carrying significant weight in the circumstances, here the Appellant “had been in knowing, serious and long-term breach of the conditions subject to which his leave to remain in the United Kingdom as a student had been granted”.

Although I would agree with Mr Akohene that the last sentence at paragraph 9 of the Immigration Judge’s determination was purely speculative and in error, it was not material to the outcome of the appeal and could not be regarded as nullifying the proper reasoning of the Immigration Judge in terms of the balancing exercise that he conducted. It cannot be said that such speculation affected the Immigration Judge’s overall reasoning at least, where as here there was a strong public interest to be properly balanced against the Appellant’s private life rights. This was not a private life built up in the expectation that the Appellant would be able to remain in the United Kingdom. However, indeed their Lordships in Huang in the passage to which the Tribunal referred in CDS pointed out with particular reference to the justification of removal under Article 8(2) there would in almost any case be certain general considerations to bear in mind that included “the general administrative desirability of applying known Rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory…”. But in such matters an important consideration even where an applicant who might fail to qualify under the Rules might have a valid claim by virtue of Article 8.

I find that it cannot even arguably be said that the Immigration Judge failed to take relevant material into account or that his decision was perverse or irrational in the Wednesbury sense.

The making of the previous decision involved the making of no error on a point of law and I order that it shall stand.