Case No. UKUT-00090-(IAC)

[2009] EWCA Civ 78; Practice Statement 3). 2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced. 3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer. 4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal. DECISION AND REASONS Introduction 1. The appellant is a citizen of Sierra Leone , who was born in July 1986. She was granted indefinite leave to remain in the United Kingdom on 10 September 2003. 2. On 21 June 2004, the appellant left the United Kingdom , returning to Sierra Leone . In June 2015, the appellant applied for entry clearance as a returning resident, pursuant to paragraph 18 of the Immigration Rules. 3. On 26 June 2015, an e ntry clearance officer refused the appellant ’s application. The notice of decision stated that the appellant had arrived in the United Kingdom in February 200 1 and left in 2004. T hat was , accordingly, a period of absence of more than 2 years (indeed, over eleven years at the date of refusal). 4. Paragraph 19 of the immigration r ules provides that a person who doe s not benefit from paragraph 18 ( which enables a person to obtain entry clearance provided that, inter alia, they have not been away from the United Kingdom for more than two years) may nevertheless be admitted as a returning resident “if, for example, he has lived here most of his life”. There is, thus, a discretion that may be exercised in favour of the person. 5. Accordingly, the e ntry clearance officer considered the matter and concluded as follows:- “ . . . • Given that you have not been in the UK since 2004 and the amount of time you have spent there since obtaining your indefinite leave to remain, I am not satisfie d that you have demonstrated a strong connection with the UK. To be considered as a returning resident you need to show that you are habitually resident in the UK and that any absences have been of a temporary or occasional nature, however I do not consider an absence of over eleven years to be temporary and it appears that you are settled in Sierra Leone . • I have considered the compassionate circumstances of your application. You have stated in your visa application form that you lef t the UK in 2004 because your grandmother in Sierra Leone was seriously ill. However, you have stated that you live d with her until 21 September 2013. In his letter of support submitted with your application your father confirms that you were li ving with your grandmother un t il 2013 and that since returning to Sierra Leone you have completed a coll ege course. He states that you cannot find employment in Sierra Leone and that you have no close relatives in Sierra Leone to support. I have considered tha t you are 28 years old and that you have submitted evidence that you have received an education. It is not clear why you are unable to find employment. You have submitted a limited amount of money transfer slips as evidence that you are financially dependent on your father. However, these have been submitted in isolation and I am not satisfied that alone they demonstrate a dependence. I am… satisfied my decision to refuse your application is proportionate under the Immigration Rules. Given all of the above, I am not satisfied that you qualify for entry as a return ing resident because you do meet (sic) [ presumably , do not meet ] the requirements of paragraph 18” 6. Underneath these passages, the notice of decision stat ed: “Y ou are entitled to appeal against this decision unde r section 82(1) of the National ity , Immigration and Asylum Act 2002”. An appeal form was p rovided for this purpose. It was also stated: “I f you decide to appeal against a refusal of this application, the decision will be reviewed, with your grounds of appeal and the supporting documents you provide”. The appellant attempts to appeal 7. The appellant filed a notice of appeal to the First-tier tribunal against the e ntry clearance officer ’s decision. As promised in that decision, an entry clearance m anager reviewed the grounds of appeal and supporting documents. Having done so, the e ntry c learance m anager, in a decision dated 13 November 2015, concluded that the decision of the e ntry clearance officer was correct. It w as in accordance with the law and the immigration r ules ; and the e ntry c learance m anager was not prepared to exercise discretion in the appellant ’s favour . 8. The entry clearance manager then said :- “I have considered the appellant ’s rights under A rticle 8 of ECHR. Article 8 of the ECHR is a qualified right , proportionate with the need to maintain an effective immigration and border control and decisions under the Immigration Rules a re deemed to be compliant with h uman r ights legislation. Although the appellant may have a family life with relatives resident in the UK , I am satisfied that the decision is proportionate under Article 8(2). I note that no satisfactory reason has been put forward as to why the appellant ’s family in the UK are unable to travel to Sierra Leone to be with the appellant . I am therefore satisfied that the decision is justified by the need to maintain an effective immigration and border control. I have also considered whether the particular circumstances set out in the appeal constitute exceptional circumstances which, consistent with the r ight to respect for private and family life contained in Article 8 of the European Convention o n H uman Rights, mi ght warrant a grant of entry clearance to the United Kingdom outside the requirements of the Immigration Rules. Following a thorough assessment of the appeal I am satisfied that there is no basis for such a claim. Given all of the abo v e , I do not consider that the evidential balance has been tipped i n the appellant ’s favour, as I maintain the decision to refuse entry clearance “. 9. At some later point, the appellant travelled to the United Kingdom and was granted temporary admission. She made an asylum claim, which has subsequently been withdrawn. Proceedings in the First-tier Tribunal 10. On 22 December 2016, the appellant ’s appeal came before First-tier Tribunal J udge Eldridge, sitting at Harmond sworth. The presenting officer submitted to the judge as a “preliminary issue” that the appellant had no right of app eal “because of the changes in appeal r ights brought about by the Immigration Act 2014” (paragraph 4 of the judge’s decision) . Mr Ha a strup , who appeared on behalf of the appellant , sought an adjournment of an hour to consider the matter “which had been raised only at the hearing”. Judge Eldridge, accordingly, granted a short adjournment, following which the presenting officer renewed her submissions and Mr H a astrup addressed the judge on the issue. Mr Ha a strup t sought a further adjournment, which was not opposed by the presenting officer. 11. Judge Eldridge adjourned the matter, which he considered to be “an issue of great importance to the appellant ”, fixing a new hearing date of 13 January 2017. 12. On that date, Judge Eldridge heard submissions on the issue of whether there was a right of appeal. In a decision promulgated on 25 January 2017, the judge held as follows:- “ 8. The Immigration Act 2014 made considerable changes to the rights of appeal under the Nationality, Immigration and Asylum Act 2002. The changes made by the 2014 Act have been brought in effect (sic) in a series of Orders, and the most p ertinent are Commencement Order No. 3 made on 15 Octob er 2014 and Commencement Order N o. 4 made on 25 February 2015. 9. My understanding of the legal position is that there is now no right of appeal in respect of applications made after 6 April 2015, unless the decision concerned is a refusal of an asylum, p rotection of (sic) h uman r ights claim. This was not claim on any of those three bases but as a returning resident. A “ human rights claim” is defined in [section] 113 of the 2002 Act, and , whilst it is clear that the appellant mentioned her fathe r living in this country and a sister, her application was put on the basis of her being a returning resident and not otherwise. 10. I conclude that there was no valid appeal before me because the appellant had no right of appeal”. 13. On 18 August 2017, Acting R esident J udge Appleyard (as he then was) refused permission to appeal to the Upper Tribunal. Judge Appleyard referred to a notice, purporting to be made under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which had apparently been sent with Judge Eldridge’s decision, stating that “the notice of appeal you have lodged is invalid and the Tribunal will take no further action in relation to it”. 14. Judge Appleyard said:- “2. That being the position there is accordingly no decision against which the appellant can seek permission to appeal against and in the circumstances her remedy would have been to seek judicial review”. 15. With respect, that statement is w rong. Compatibly with the judgments of the Court of Appeal in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, Practice Statement 3 (W here the Tribunal may not accept a notice of appeal) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal makes it plain that the scope for issuing a notice under rul e 22 is limited. Rule 22 may be employed where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given, and concludes that no right of appe al exists. Where, as in the present case, no rule 22 n otice was issued at that stage and the m atter proceeded to a hearing, r ule 22 can play no further role. Practice Direction 3.4 says: “ 3.4 The fact that the hearing date may have been given to the parties does not mean that the appeal must be treated as valid. Accordingly, if a further hearing (including a CMR hearing ) , it transpires that the n otice o f a ppeal does not relate to a decision against which there is, in the circumstances, an exercisable rights of appeal, the Tribunal must so find; but it will do so in the form of a determination, rather than by means of a notice under First-tier r ule 22”. 16. In other words, once this point is reached, the decision of the First-tier Tribunal , holding that it lacke d jurisdiction to consider the notice of appeal and grounds, may be challenged on appeal to the Upper Tribunal. T his was recognised by Upper Tribunal Judge Allen who, on 20 October 2017, granted permission to appeal on the basis that it was “arguable that a human rights claim was made in this case and that therefore the appellant had a right to appeal ” .