United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/02244/2014

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 28 th November, 2014, 3 rd June, 2015 and 1 st April, 2016	On 26 th April 2016

 

Before

 

UPPER TRIBUNAL JUDGE CHALKLEY

DEPUTY UPPER TRIBUNAL JUDGE KAMARA

 

Between

 

Ms Junior Chikurukuta

(ANONYMITY DIRECTION NOT MADE)

Appellant

And

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

Representation :

 

For the Appellant: 28 ^th November, 2014: Ms C Soltani, Solicitor, Iris Law Firm (Gateshead)

3 ^rd June, 2015: Ms S Akinbola of Counsel, instructed by Iris Law Firm (Gateshead)

1 ^st April, 2016: Ms S Akinbola of Counsel, instructed by Iris Law Firm (Gateshead)

For the Respondent: 28 ^th November, 2014: Ms L Kenny, Home Office Presenting Officer

3 ^rd June, 2015: Ms A Fijiwala, Home Office Presenting Officer

1 ^st April, 2016: Ms A Fijiwala, Home Office Presenting Officer

 

DECISION AND REASONS

 

1. The appellant is female, a citizen of Zimbabwe and was born on 10 ^th January, 1971. She appeals against a decision of the respondent, taken on 12 ^th December, 2013 to refuse to grant her indefinite leave to remain in the United Kingdom on the basis of long residence. At the hearing on 28 ^th November, 2014 Upper Tribunal Judge Chalkley found that both the Secretary of State and the Immigration Judge had erred in law following the decision in Edgehill [2014] EWCA Civ 402 by failing to apply the pre-July, 2012 Immigration Rules. He was persuaded to adjourn the hearing to enable the respondent to produce original documents which, the appellant maintained, demonstrated that she had been in the United Kingdom for twenty years. The matter was adjourned at the hearing on 3 ^rd June because the Home Office had failed to produce the appellant's passport in order that the appellant could retake the English language test. The Presenting Officer said that she would seek permission to release the passport.

 

2. When the matter appeared before me today we were advised that the Presenting Officer and Counsel had agreed between themselves that the appropriate course would be for the Upper Tribunal to allow the appellant's appeal to the extent that the original decision was not in accordance with the law so that the matter would then be referred back to the Secretary of State in order that she could remake her decision.

 

3. We expressed considerable concern at the delay in this matter and the lack of caseworkers within the Home Office to take a pragmatic view given that this appellant has been in the United Kingdom now for some 21 years and a considerable amount of public money has been expended on maintaining a decision which, it now appears, the Secretary of State accepts was not in accordance with the law.

 

4. Following the appellant's decision to appeal her appeal was heard by First-tier Tribunal Judge Kaler at Taylor House on 28 ^th August, 2014. Ms Akinbola appeared on behalf of the appellant during the course of that hearing and made submissions to the judge, including that the decision was wrong and in accordance with the decision in Edgehill the appellant should have benefited from transitional provisions. The judge found that the appellant had not established that she had been in the United Kingdom continuously between 1995 and 1999.

 

5. The reason we were persuaded to adjourn the hearing was because it was said that the Home Office had retained documents belonging to the appellant which the appellant had submitted with her application which demonstrated that she had been in the United Kingdom since 1995.

 

6. We concluded that the First-tier Tribunal had erred in law.

 

7. It has now been accepted on behalf of the Secretary of State that the original decision of the Secretary of State of 12 ^th December, 2013 was not in accordance with the law. To that extent this appeal is allowed.

 

8. We trust that the Secretary of State will now be able to reach a decision without any further undue delay.

 

9. Although this determination has been prepared by Upper Tribunal Judge Chalkley it is the decision of us both.

 

Notice of Decision

 

This appeal is allowed to the extent only that is remains for the Secretary of State for the Home Department to make a lawful decision on the appellant's application on 25 ^th August 2009.

Upper Tribunal Judge Chalkley