The Secretary of State for the Home Department v Haseeb Ahmed

This is the judgment of the Tribunal, to which we have both contributed. Although the substantive law in this case is jurisprudentially unremarkable, the procedural aspects are another matter.

The respondent, hereafter claimant, is a citizen of Pakistan born in 1986. The claimant entered the United Kingdom in December 2010, with entry clearance as a student. Further leave in that capacity was granted in 2012, to last until June 2014. In February 2013, however, that leave was curtailed. The curtailment decision attracted a right of appeal but no appeal was lodged.

In May 2014, the appellant submitted an application for leave to remain, based upon his marriage to a British citizen, present in the United Kingdom, with whom he had had a child, born in Bristol in December 2013, who was also a British citizen.

On 20 October 2014, the Secretary of State refused the claimant’s application. Paragraph 7 of the decision observed that, in order for the claimant to be eligible for consideration for limited leave to remain under Appendix FM and paragraph 276ADE of the Immigration Rules, the claimant must not be excluded on the grounds of suitability under Appendix FM S- L T R.1.1 . - 3.1. The reason why the Secretary of State concluded that the claimant failed in this regard was because his case fell for exclusion under S-LTR.2.2. This applies where, w hether or not to the applicant’s knowledge: -

Paragraph 8 of the decision stated that Educational Testing Services (ETS) had confirmed to the Secretary of State that the claimant’s Test of English for the International Communication (TOEIC) Programme had been undertaken by deception and , as a result, the claimant’s subsequent grant of leave, which was dependent upon him having passed that test, had been obtained by deception. In particular, the Secretary of State took the view that “an anomaly with your speaking test indicated the presence of a proxy test taker”.

The decision moved to consideration of the claimant’s spouse, and whether his relationship with her qualif ied the claimant for leave to remain by reason of the “family life” aspects of Appendix FM. The Secretary of State concluded that the claimant’s spouse did not meet the definition of “partner” in Appendix FM because - leaving aside the fact that the claimant could not satisfy the suitability requirements of the R ules – the claimant had not shown that he and the spouse were in a genuine and subsisting relationship.

The Secretary of State’s decision then turned to the issue of whether the claimant wa s eligible for leave to remain under Appendix FM on the basis of family life as a parent. Here, the Secretary of State concluded that the claimant had failed to adduce evidence to show that he had a genuine and subsisting relationship with the child. As a result, the Secretary of State concluded that the claimant had failed to show compliance with the requirements of E-LTRPT.2.3. and 2.4. of Appendix FM.

Quite apart from the earlier findings regarding paragraph 276ADE (private life), the Secretary of State considered that the claimant failed to meet the substantive requirements of that provision. Looking outside the ambit of the R ules, the decision stated that the Secretary of State did not consider that leave to remain fell to be given to the claimant by reference to Article 8 of the ECHR. The claimant had attempted to obtain leave to remain by deception, which was a factor weighing in the proportionality balance.

The claimant appealed against the Secretary of State’s decision. His appeal was heard at Newport on 31 July 2015 by First-tier Tribunal Judge O’Rourke. Having heard the claimant and his spouse give oral evidence, the judge concluded their evidence was “unsatisfactory and unreliable”. The reasons were set out at paragraph 14 of the decision. In particular, the judge found that the evidence of the wife “was not that of a wife keen to bolster her husband’s appeal and to secure his continue d residence with her. Her evidence was … evasive and hesitant and in direct conflict with the contents of her witness statement”. This, and other matters recorded by the judge, caused her to “query whether she was under duress in attending to give evidence at this hearing”.

Concerning the issue of whether the claimant had employed a proxy to take his TOEIC test, the First-tier Tribunal Judge said as follows:-

The judge was, however, able to make a finding regarding whether the relationship of the claimant and his spouse was genuine and subsisting. She found it was not ; in particular because it was “clear to me that the sponsor certainly does not regard herself as in such a relationship”.

The judge, however, allowed the appeal under the Immigration Rules, for the following reasons:-

In September 2015, the Secretary of State applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The grounds contended that the First-tier Tribunal Judge had erred in law in finding that the Secretary of State had not discharged t he burden of proof in demonstrating that this [claimant] used deception. The grounds submitted that the witness statements and extract from a spreadsheet, filed by the Secretary of State, detailed extensively the investigation undertaken by ETS in the claimant’s case –

The grounds further submitted that the claimant “does not meet the suitability requirements of Appendix FM of the Immigration Rules. As such, the [claimant’s] application cannot succeed even with reference to EX.1”.

On 12 January 2016, First-tier Tribunal Judge P J M Hollingworth granted permission. His reasons were as follows:-

The hearing before the Upper Tribunal was listed for 27 January 2017 in Newport. On 19 January 2017, Bushra Ali Solicitors wrote to Field House under the heading “Private & Confidential – Urgent ”. The body of the letter read as follows:-

The obvious point about this letter was, of course, that the claimant could not be asking for his appeal to the Upper Tribunal to be withdrawn. The claimant had no such appeal. It was the Secretary of State who had been given permission by the First-tier Tribunal to appeal against First-tier Tribunal Judge O’Rourke’s decision to allow the appeal against the Secretary of State’s refusal to grant leave to remain.

The Upper Tribunal, accordingly, treated the letter of 19 January 2017 as an application under r ule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 by the claimant to withdraw his case. The effect of that was that the Secretary of State’s appeal was unopposed. The Upper Tribunal therefore set aside the decision of the First-tier Tribunal, on the grounds identified in the application for permission and grant of permission , and substituted a decision dismissing the claimant’s appeal against the Secretary of State’s decision refusing leave.

The claimant was unhappy with the Upper Tribunal’s decision. His solicitor s sought on his behalf to have the matter reinstated under r ule 17(3), which led to the Upper Tribunal writing to the solicitors in May 2017 requesting confirmation that, in that event, it needed to be understood that the appeal would have to re-decided, carrying as that did the risk that the eventual decision “ will be a reasoned one in the Secretary of State’s favour ” . On 25 August 2017, the solicitors wrote to say that the ir intention was to seek permission to appeal to the Court of Appeal against the decision that had been made on 20 March 2017.

Permission to appeal was refused by the Upper Tribunal but , on renewal to that court, it was granted in November 2018. By consent, the claimant’s appeal was allowed and the matter was remitted to the Upper Tribunal. The court held that the Upper Tribunal had been wrong to treat the correspondence from the claimant’s solicitors as a notice of withdrawal and that, in any event, there was no basis for the Upper Tribunal to set aside the First-tier Tribunal’s decision allowing the Secretary of State’s appeal.

It is, of course, not our place to comment upon the Court of Appeal’s decision. It is, however, necessary to point out that the unfortunate process we have just described stems from the claimant’s solicitors’ letter of 19 January 2017.

At the hearing on 18 September, we asked Mr Jacobs (who had drafted the grounds of appeal to the Court of Appeal) to explain what had been meant by the letter of 19 January 2017 and what the Upper Tribunal was being asked to do. With admirable candour, Mr Jacobs responded that he did not have an answer to th ose question s . Certainly, we are not aware of any statement from the solicitors which might shed light on the matter. The closest we get is this , from the statement of truth of the solicitor dated 11 April 2017:-

Thus, the claimant’s motivation in having his solicitor write the letter of January 2017 was to bring the current appeal proceedings to an end, which would enable him to make a fresh application for leave to the Secretary of State. His solicitor s , however, ought to have pointed out to the claimant that the Upper Tribunal could not, on that basis, itself bring the proceedings to an end. Nor could the Upper Tribunal compel the Secretary of State to withdraw her appeal. If those basic points had been appreciated, it is unlikely that the Court of Appeal would have been troubled and much time and (no doubt) expense would have been saved.

That was not, however, the only unusual procedural aspect of this case. In his skeleton argument, filed and served on 17 September 2019, Mr Jacobs submitted, as a preliminary issue, that the Secretary of State’s application for permission to appeal to the Upper Tribunal was out of time and should, accordingly, not be admitted. The determination of First-tier Tribunal Judge O’Rourke was promulgated on 5 August 2015. The application, made to the First-tier Tribunal, was submitted on 16 September 2015. That is outside the fourteen day time limit prescribed by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. The Secretary of State’s application for permission contained no explanation for the delay.

Mr Jacobs cited r ule 20 of the 2014 Rules:-

Mr Jacobs relied upon the Upper Tribunal decision in Samir (FtT permission to appeal: time) [2013] UKUT 00003 (IAC) , in which permission to appeal to the Upper Tribunal was granted by a judge of the First-tier Tribunal , where the application was out of time, but the judge did not extend time. Applying the decision in Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442, the Upper Tribunal held that the grant of permission by the First-tier Tribunal had been conditional upon time being extended by that T ribunal. Such an extension could be granted at the hearing in the Upper Tribunal, if the judge or judges of the Upper Tribunal re-constituted themselves as First-tier Tribunal judges and decided, in all the circumstances, that it was appropriate to extend time.

In Samir , a Deputy Judge of the Upper Tribunal had decided (it is assumed, as a Judge of the First-tier Tribunal) not to extend time and he therefore declined to admit the application. This meant that the Secretary of State, as the disappointed party, had the opportunity of making an application for permission to the Upper Tribunal, which he duly did. The Upper Tribunal considered the application, pursuant to r ule 21 of the Upper Tribunal Rules, paragraph (7) (b) of which provides that, in the circumstances with which the case was concerned, the Upper Tribunal “must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do so”. The Upper Tribunal considered that it was not in the interest s of justice; and so there was no appeal pending before it.

The following passages from the decision in Samir contain the essence of the reasoning of the Upper Tribunal:-

The effect of Boktor and Wanis and Samir is that s omething that , on its face, purports to be a grant of permission, which is the jurisdictional prerequisite for being able to bring an appeal before the Upper Tribunal, is merely “conditional”, in the sense that – as i s apparent from paragraph 19 of Samir – the First-tier Tribunal ’s permission process is incomplete. If “when the matter is brought to the Tribunal’s attention” , the First-tier Tribunal does not grant permission, then the Upper Tribunal lacks jurisdiction to consider the appeal, by reference to the purported grant of permission by the First-tier Tribunal ; and the only course open to the party concerned is to make a renewed application for permission , direct to the Upper Tribunal.

The pragmatic approach adopted by Boktor and Wanis and Samir , in which the Upper Tribunal reconstitutes itself as the First-tier Tribunal to complete the process begun but not finished by the First-tier Tribunal judge, may be a satisfactory approach, where the Tribunal’s attention is drawn to the timeliness issue at an early stage in the Upper Tribunal proceedings . However , it raises questions where the timeliness point is not raised until much later. The logic of these cases might suggest that, even if the point is raised after the Upper Tribunal has made a substantive decision, which may have been appealed to the appropriate appellate court, its raising at any stage means the issue will need to be adjudicated upon by the First-tier Tribunal, if the purported grant of permission is to be treated as valid.

Since Samir was decided, the P rocedur e R ules of the Immigration and Asylum Chamber of the First-tier Tribunal had been replaced by the 2014 Rules. Mr Jacobs drew attention to r ule 20 (late notice of appeal) , quoted above .

At the hearing, the Upper Tribunal drew attention to r ule 6(1) of the 2014 Rules, which has no counterpart in the earlier Rules:-

With the benefit of rule 6, it is possible to avoid the potential problem described in paragraph 30 above. The fact that permission to appeal has been granted by the First-tier Tribunal without extending time will not, of itself, affect the validity of the grant. It will, however, be possible for the timeliness point to be taken before the Upper Tribunal has reached a substantive decision on the appeal. If it is, then the First-tier Tribunal (including , if necessary, the Upper Tribunal reconstituting itself) will decide under rule 6(2) whether to waive the requirement to extend time and, if not, whether time should be extended. Much will depend upon the procedural history and the knowledge and conduct of the parties. If t he requirement is not waived and time is not extended, then the outcome will be as it was in Samir.

Where the timeliness point is not taken before the Upper Tribunal reaches a substantive decision in the appeal, rule 6 means that the proceedings in the First-tier Tribunal, including the grant of permission, are to be treated as valid, with the result that the ensuing decision of the Upper Tribunal is, likewise, valid. It cannot be compatible with the overriding objective of both Chambers’ Procedure Rules for the party who did not secure the permission to raise the timeliness point only a fter the substantive decision has been given . In order to argue his or her case in the Upper Tribunal, that party will have had access to the other party’s application and grounds, from which the timeliness point should have been apparent. Accordingly, the Upper Tribunal’s substantive decision is the point at which Boktor and Wanis and Samir cease to have any application.

Returning to the present case, although the formal position is that the Upper Tribunal has yet to make a substantive decision (its earlier one having been set aside by the Court of Appeal), in all the circumstances it would be wholly unconscionable now to prevent the Secretary of State’s appeal from being substantively determined by the Upper Tribunal. The claimant’s present stance is at odds with his stance before this T ribunal hitherto, in which, as we have seen, he accepted that there was an appeal before the Upper Tribunal . I n particular, it is wholly incompatible with his decision to appeal the Upper T ribunal’s earlier decision to the Court of Appeal. The claimant has long been in a position to take the timeliness point but has not done so.

A s a result , even though the breach of the time limit by the Secretary of State in 2015 was significant and we have not been given an explanation for it, we have no hesitation in concluding that the claimant has waived any entitlement he may have to raise the timeliness point.

In order to avoid the procedural disadvantages of reconstituting o urselves as the First-tier Tribunal, we treat the Secretary of State’s application for permission to appeal as one made directly to the Upper Tribunal . We waive the relevant requirements of r ule 21 of the Upper Tribunal Rules, so as to enable that application to be made ; and we give permission to appeal, with this decision standing as written notice for the purposes of r ule 22(2)(a).

We are now able to turn to the question of whether there is an error of law in the decision of First-tier Tribunal Judge O’Rourke, such that her decision should be set aside.

The judge clearly had an obligation to decide whether it was more likely than not that the appellant had engaged in deception in relation to his TOEIC test, the burden being on the Secretary of State to prove that. The judge, accordingly, could not validly decline to decide whether or not the claimant had acted in that manner or there had otherwise been deception of the kind envisaged by the Immigration Rules. As matters stand, this issue remains unresolved.

However, as Mr Clarke fairly acknowledged, the Secretary of State needs to show that that error on the part of the judge is one that properly requires her decision to be set aside. It is, accordingly, necessary to examine paragraph 17 of her decision.

T he Upper Tribunal held in Sabir (Appendix FM - EX.1. not free-standing) [2014] UKUT 00063 (IAC) that EX.1. is not a free-standing mechanism for granting leave, in the sense that, where leave is sought as a partner and the applicant fail s to meet the “suitability” requirements of S-LTR, the applicant will not succeed , even if he or she falls within the scope of EX.1.

Since it was the ETS issue which caused the Secretary of State to take the view that the suitability requirements were not met by the claimant , the judge’s failure to make a finding on that issue infected her conclusions in paragraph 17. Nevertheless, as Mr Clarke pointed out, the First-tier Tribunal Judge was required, when looking at the claimant’s Article 8 ground o f appeal, to have regard to “the public interest question” as defined in section 117A of the Nationality, Immigration and Asylum Act 2002, as regards the considerations listed in section 117B.

Section 117B(6) provides that:-

As we now know from K O (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 , section 117B(6) is of particular significance. Where paragraphs (a) and (b) are satisfied, the Secretary of State cannot point to the public interest as requiring the removal of the person concerned. In determining whether those paragraphs are satisfied – in particular, whether it would “be reasonable to expect the child to leave” - th e individual conduct of the person concerned does not play a part. Nor is it relevant whether the child would, in practice, leave the United Kingdom in the event of the person’s removal : AB (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 661.

In the light of her findings in paragraph 17, regarding the largely analogous provisions of EX.1., it is manifest that the judge’s decision to allow the appeal would have been the same , if she had gone on specifically to look at section 117B(6) . We say this because t here is no ch allenge by the Secretary of State in the grounds to the findings of fact that underpinned the judge’s conclusions in paragraph 17.

Finally, we must deal with an important matter which needs to be firmly borne in mind by practitioners and others in the immigration jurisdiction. Upon receipt of the claimant’s bundle for the Upper Tribunal hearing, it became evident that material in it emanated from proceedings involving the claimant in the Family Court in Bristol. It appeared to us that at least some of the relevant documentation fell within the ambit of section 12 of the Administration of Justice Act 1960 and r ule 12.73 of the Family Procedure Rules 2010; in which case, its disclosure would be a contempt of court unless the F amily C ourt had given permission.

The Upper Tribunal took immediate steps to ascertain whether such permission had been obtained. Regrettably, Mr Jacobs informed us at the hearing that it had not. We wrote to the Designated Family Judge in Bristol, in order to bring the matter to his attention. Although Mr Jacobs addressed us on the circumstances surrounding the disclosure, we do not consider that it would be appropriate to re cord them in this decision.

It is very important that judges in this jurisdiction are alert to th e matter and t hat they take all necessary steps when it arises.