New Video - Upper Tribunal (IAC) Reported Decisions: December 2020
In this series I summarise the reported decisions of the Upper Tribunal Immigration and Asylum Chamber for 2020 tackling them a month at a time. In this video I look at the reported decisions for December 2020 covering permission to appeal and refusals of human rights claims. I also cover an additional decision from October 2020 on Suitability grounds in Appendix FM.
Citations, Links and Head notes:
- Paragraph S-LTR.1.6. of Appendix FM does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.
- Paragraph S-LTR.4.2. of Appendix FM is disjunctive with two independent clauses. The Home Office is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses.
- The natural meaning of the first clause in paragraph S-LTR.4.2 requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application.
- The use of the words ‘required to support’ in the second clause in paragraph S-LTR.4.2 confirms a compulsory element to the use of the document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.
If a decision of the First-tier Tribunal that an application for permission to appeal was in time represents the clear and settled intention of the judge then, as it is an 'excluded decision' (see the Appeals (Excluded Decisions) Order 2009 (SI 2009/275, as amended), it may only be challenged by way of judicial review; that remains so even if both parties agree that the decision is wrong in law. Only if the judge has overlooked the question of timeliness and any explanation for delay will the grant be conditional upon the Upper Tribunal exercising a discretion to extend time (see Boktor and Wanis (late application for permission) Egypt [2011] UKUT 442 (IAC)).
Yerokun (Refusal of claim; Mujahid) Nigeria [2020] UKUT 377 (IAC) (16 December 2020)
The reasons given by the President in R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 85 (IAC) are reinforced by two further factors: (1) Under s 104(4A) a human rights appeal is deemed to be abandoned if a period of leave, however short, is granted after the appeal is brought. It is inconceivable that it was intended that a refusal of an application accompanied by a grant of leave was intended to generate a right of appeal. (2) There is an inherent difference between an application and a claim and the refusal of the one does not imply or entail the refusal of the other, even where the application includes a claim.