Michael Chimpope Singini v The Secretary of State for the Home Department

The Appellant is of Malawian nationality and is aged forty-three years. This appeal has its origins in a decision of 2 April 2010 of the Secretary of State for the Home Department (“the Respondent”), whereby the Appellant’s application of 9 February 2010 to vary his leave to remain in the United Kingdom was refused under paragraph 319C of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereinafter “the Immigration Rules”) and on human rights grounds (Article 8 ECHR).

According to the Respondent’s letter of decision, dated 2 April 2010, the Appellant made a combined application for leave to remain in the United Kingdom as a “Points Based System Migrant” and for a biometric immigration document. He had previously been granted leave to enter the United Kingdom, on 6 January 2007, as a student, until 31 March 2010. His application for further leave to remain in the United Kingdom was made on 9 February 2010. On the face of the letter of decision, the sole issue to be confronted and determined was whether the Appellant could, as a matter of law, convert his status from that of student to dependant of a person possessing leave to remain in the United Kingdom as a Points Based System Migrant. The Respondent decided that such conversion was not permissible under paragraph 319C(h) of the Immigration Rules (the conversion issue) and refused the application accordingly. The First-tier Tribunal agreed with the reasoning of the Respondent on the conversion issue and also rejected the Appellant’s claim under Article 8 ECHR. The appeal was dismissed accordingly.

In the grant of permission to appeal, it was considered that there were two potentially arguable errors of law. The first concerns the conversion issue. The second relates to the rejection of the Article 8 ECHR claim. Upon the hearing of the appeal before us, argument was addressed to each of these issues by Mr. Thathall of counsel, on behalf of the Appellant and Mr. Tufan, the Respondent’s Presenting Officer.

The Appellant relies primarily upon paragraph 319C of the Immigration Rules. It is appropriate to reproduce this in full:

According to the text of HC367, the changes embodied in the Statement were to come into operation in the following way:

Notwithstanding the above conclusion, it remains appropriate to deal with the main submission advanced on behalf of the Appellant, which relates to the conversion issue, as this may recur and in the event of a further appeal materialising. This relates to the construction of Paragraph 319C(i) of the Rules. In an argument which may fairly be described as both intricate and inventive, Mr. Thathall submitted, in substance, that this new provision should be treated as a fourth subparagraph of paragraph 319C(h) and construed accordingly. This submission, duly probed, gives rise to the following exercise :

The exercise which the Tribunal was invited to perform in the construction of the new provision in paragraph 319C urged on behalf of the Appellant can fairly be equated with an elaborate and complex surgical operation. It entails elements of distortion, reformulation, addition, substitution and insertion. In short, a highly inventive imagination and much creative invention are required. We consider that as judges, rather than contortionists, it simply is not open us to construe the new provision in the manner urged. The steps which we were invited to take in aid of the Appellant’s suggested construction of the new provision are, in our view, impermissible and inappropriate. The fundamental objection to them is that they do not involve an exercise of construing the new provision. Rather, they require it to be radically rewritten. This, in our judgment, is the incurable infirmity in the Appellant’s argument. We are of the clear opinion that grammatically, syntactically, sensibly and logically the new provision is a freestanding addition to paragraph 319C to be inserted, treated and construed as subparagraph (i), divorced from but following upon subparagraph (h).

It follows that a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependant of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii).

Accordingly, we have concluded that the Immigration Judge did not err in law in reaching his decision to dismiss the Appellant's appeal under the Immigration Rules.

Finally, we turn to consider the Appellant’s Article 8 ECHR claim. Immigration Judge Parker concluded that the Respondent’s decision would not be in breach of Article 8 ECHR, mainly because he found that, if the Appellant were to be returned to Malawi, there were no compassionate circumstances other than that he might be separated from his wife and child for a limited period whilst she completed her studies, scheduled for termination in January 2012, in the United Kingdom. The Immigration Judge therefore determined the Article 8 claim on the basis that the Appellant's child would remain in the United Kingdom with his wife. Mr. Tathall informed us that, at the date of the hearing before the Immigration Judge, the Appellant's child was in fact living in Malawi. It appears that the Appellant's wife left the child with the child's grandparents upon her return to Malawi in November 2009 for a period of approximately two months. We have taken careful note of the Appellant’s family circumstances and the various family movements between Malawi and the United Kingdom and vice versa since the Appellant and his wife first entered the United Kingdom some five years ago, with the benefit of a three and a half year student visa. If the Appellant leaves the United Kingdom at this stage he will be reunited with his daughter and other family members in Malawi, with an ensuing separation from his wife for a maximum period of approximately eight months [or less, taking into account conventional student vacation periods]. To the extent that this will give rise to any interference with his right to respect for the family life which he has enjoyed with his wife in the United Kingdom during most of the past five years this, in our view, will be modest and is demonstrably proportionate to the legitimate aim in play, namely the maintenance of firm but fair immigration control.

Accordingly, any misapprehension of the facts on the part of the Immigration Judge concerning the country in which the Appellant’s child was living at the date of the hearing was not material to his decision, which was nevertheless still open to him on the evidence. The main rationale underpinning the immediately preceding paragraph is the disclosure to this Tribunal that the information relating to the child’s whereabouts since November 2009 did not feature in the evidence available to the judge. We are of the opinion that this reinforces the judge’s decision in this respect.

The decision of the Immigration Judge did not involve the making of an error on a point of law such that it falls to be set aside.