Spectres of Pankina: The Rules, Fairness and Article 8

Ferrer (limited appeal grounds; Alvi) Philippines [2012] UKUT 304 (IAC) (01 August 2012)

This is a recent Upper Tribunal (“UT”, Judges Storey and Lane) case involving the Alvi [2012] UKSC 33 and Pankina [2010] EWCA Civ 719 genre of cases. The case underscores the importance of some of the submissions made in Alvi where the UK Supreme Court (Lords Hope, Walker, Clarke, Dyson and Wilson JJSC) simplified things by devising a test which mitigated the “whirlwind” litigation arising from the distinction made by the courts between procedural and substantive requirements of the Immigration Rules. So, it is not surprising that in the instant case the UT said, “even Lord Dyson’s test is not a panacea” [40]. Moreover, the UT also interpreted the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the immigration and asylum chamber.

Although relatively short (69 paras), the UT’s dense determination is loaded with article 8, work permits, Tier 2 and procedural requirements in relation to appeals in the immigration and asylum context.

Background

The appellant, Maria Rosario Cabrario Ferrer (“F”) from the Philippines, entered the UK as a work permit holder in May 2006 and applied for indefinite leave to remain (“ILR”) in May 2011 under the work permit scheme but the Secretary of State for the Home Department (“SSHD”) refused to vary F’s leave because her rate of pay (£5.93/hour) as a senior care assistant was not at the minimum rate of pay in the codes of practice guidance (£7.02/hour) for Tier 2 sponsors. F was also in relationship with Mr Vernon (“V”), a British citizen. They met in May 2011 and began to cohabit. V remained by F’s side in her battle against breast cancer but the couple postponed getting married until F’s visa status became certain.

The problem in F’s case was that her work permit indicated that her annual salary was to be set at £11,500 and that significant increases in earnings as a work permit holder required her to switch into Tier 2 to remain in the UK which imposed a higher salary requirement than what F was earning. Paragraph 134 of the Immigration Rules required that for F to qualify for ILR, her employer would need to certify that she is paid at or above the appropriate rate for the job as stated in the code of practice for Tier 2 sponsors published by the UK Border Agency. Paragraph 134 referred back to paragraph 128(iv), which required that an applicant “does not intend to take employment except as specified in his work permit”.

First tier Tribunal (FTT)

In August 2011, the FTT (Judge McDade) dismissed F’s appeal. It was not accepted that Pankina aided her in rectifying her problem in relation to the current appropriate rate, which was not at or above that stated in the code of practice, for her job. For the judge, there was a material difference between requirements contained in guidance regarding funds held for continuous periods and hourly rates for specified jobs because “it cannot be expected that regular changes to an hourly rate for example to keep pace with inflation, required changes to the Immigration Rules which would be a frequent occurrence”. Hence, F failed to satisfy the “quite transparent requirements” of the rules! On the article 8 point it was decided that whilst F’s private life was engaged, her removal from the UK would not constitute a disproportionate breach of the ECHR because the SSHD had “a perfectly legitimate reason to interfere with the private life that she has developed”.

Grounds of Appeal

In summary, F’s four grounds of appeal were:

(1)  The FFT erred in law by finding Pankina irrelevant;

(2)  F had a legitimate expectation that she would be required to earn the salary specified by her work permit in order to qualify for ILR;

(3)  Once it was shown that F’s article 8 rights were engaged, the FTT failed to demonstrate why the decision to remove her was lawful, necessary and proportionate to the legitimate aim pursued; In holding that immigration control was a “legitimate aim”, the FTT did not consider whether the interference was sanctioned under article 8(2).

At the hearing:

(4)  A fourth ground was added pursuant to the case of Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC) – decided subsequent to the grants of permission, see commentary here – and it argued that F met the conditions for ILR as a work permit holder and did not need a Certificate of Sponsorship (“CoS”) with an identified salary level.

Prior to the hearing, a Designated Immigration Judge, who failed to make expressly clear that his grant was on limited or restricted grounds, granted permission on ground 3 but he dismissed grounds 1 (for having “no merit at all”) and 2. Yet, form IA68 (allowing F to apply to the UT for permission to appeal on a point of law arising from the FTT’s decision on any ground on which permission has been refused) was not sent out with the Designated Judge’s grant of permission. In protest, F’s solicitors wrote a letter to the UT. Given the lapse to serve form IA68, Judge Storey accepted the letter instead of form UT1 (Application to the UT for permission to appeal to the UT) because he was unimpressed with the Designated Judge and thought that in the circumstances “the grant of permission should be varied so as to make clear that all three grounds are arguable”.

The Upper Tribunal

The UT observed that rule 25(4)(b) and (5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 made it clear that form IA68 is the means by which the FTT ensures that where permission to appeal on limited grounds is granted, the appellant may apply to the UT on a point of law on any ground on which permission has been refused [21].

Moreover, rule 25(4)(a) requires “written reasons for a decision under this rule”, and written reasons are required “both for granting an application on particular grounds and for refusing the application on particular grounds” [22].

Noting that rule 15(1)(a) and (b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 expressly empowered the UT to give directions as to the issues on which evidence or submissions are required and the nature of the evidence or submissions required, it was explained that in practice granting permission on limited grounds was not usually as helpful to the parties or to the UT as a general grant of permission by reference to all grounds which expressly identified the ground(s) that is/are considered by the FTT to have the strongest prospect of success [23]. This approach complimented the UT’s powers in relation to case management directions under rule 5. Where permission to appeal to the UT is granted, by either tier of the tribunal, the grounds on which permission has been granted by either or both tribunals may be amended with the UT’s permission under rule 5(3)(c), [24].

In DL – H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC), a case concerning the continued detention of a patient who was convicted for arson in 2006 and made the subject of hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983, the UT rejected the argument that an appeal is necessarily limited to the grounds in the application on which permission was given and that further permission is required to raise other grounds. Interpreting the overriding objective (rule 2) of the Upper Tribunal Rules, Judge Jacobs [3] found that it was not “fair and just to restrict the scope of an appeal to the grounds in the application on which permission was given”. Fairness, however, did not did mean that people could raise additional grounds at will.

 

In the instant case, Judges Storey and Lane explained that in the immigration and asylum context the Tribunals, Courts and Enforcement Act 2007 (“TCEA”), read with the Upper Tribunal Rules, did not operate to excuse a party from the requirement of getting the UT’s permission to raise grounds not already before it. Given the adversarial nature of proceedings in the immigration jurisdiction, the overriding objective was not served by using a procedure that allowed new grounds to be advanced without permission. Equally, under rule 8(1A) and (2)(a) of the Upper Tribunal Rules, the UT “does not have power to strike out the whole or part of a party’s case, other than for want of jurisdiction” [27].

 

Moreover, in DL – H, Judge Jacobs [4] proceeded on the basis that some form of permission was required. Dealing with cases justly and fairly, under the overriding objective, meant that consideration had to be given to other cases before the UT whose progress would be hampered through delay if parties in appeals were allowed to raise last minute issues or pursued unmeritorious arguments [29]. Thus, F’s solicitors’ letter to the tribunal was not “an application to review the grant of permission on limited grounds”. Rather than being a review, the procedure required an unsuccessful applicant (in respect of one or more of their grounds) to apply to the Upper Tribunal for permission to appeal on those grounds [30].

Following Kizhakudan [2012] EWCA Civ 566, the UT noted that following the setting aside of the FTT’s decision, the UT’s remaking of the decision under section 12(2)(b)(ii) of the TCEA “is not necessarily limited by reference to errors of law identified in those grounds, or in any grounds that have subsequently been permitted to be argued …” [31] – [32]; the UT has discretion to consider, for e.g., an article 8 point.

Noting that earlier case law was in disarray in establishing the legal test in relation to which requirements ought to be put in the Immigration Rules, the UT recalled that in Alvi Lord Dyson [94] established that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2) of the Immigration Act 1971. After considering the “Pankina” issue, so described owing to the currency of that case authority during the earlier stages of this litigation, the UT thought that the FTT’s (Judge McDade) determination exemplified the problems encountered where considerations of administrative convenience took second place to determining the legal efficacy of materials [43]. The UT noted that long before Alvi, in Pankina the Court disagreed with the SSHD’s submissions in favour of the administrative convenience of adding requirements in sources that were not laid before Parliament under section 3(2).

Yet nothing in Alvi contradicted Mr Drabble QC’s position in relation to the acceptability of cross-referencing benchmarks such as the Retail Price Index and it was also recalled that Mr Malik had not irrevocably said that everything to do the Immigration Rules should be laid before Parliament. Rather, he submitted that – to bring some sanity to litigation under the PBS – he “was inclined to say so”. The UT [42] summarised that (a) any provisions in “pre-existing” materials that contain criteria that are or may be determinative of an application have no legal effect; (b) that is so, whether or not the materials are capable of being changed; but (c) There may be scope for an immigration rule to refer, as a requirement for leave to enter or remain, to a (necessarily pre-existing) formula or criterion that is (i) uncontroversial; and (ii) operates independently of the SSHD’s functions under the 1971 Act.

In the F’s case, the UT found that no requirement existed for the appellant to meet the minimum rate of pay indicated in the code of practice. If it existed, it would have been unlawful [44].

F relied on HSMP Forum Limited [2008] EWHC 664 (Admin) – where the Court made plain that good administration and straightforward dealing with the public meant that the SSHD could not escape from the consequences of having failed to make things clear – to argue that she had a legitimate expectation that the SSHD would not, in breach of her over-arching (and developing) public law duty to act fairly, change the requirements for her to qualify for ILR under the work permit scheme. In that case, the Court held that the SSHD could not depart from the original statements of practice produced in relation to ILR for HSMP holders to their disadvantage and that the terms of the original scheme had to be honoured. But the lack of such promises in the work permits scheme coupled with the fact that, unlike the HSMP, work permits were not “sold” to applicants (and they did not have to make the UK their principal home) meant that F could not succeed in challenging the decision on the basis of public duty of fairness/legitimate expectation [49] – [50].

That, however, was not the end of the story. F’s circumstances raised issues of fairness which required legal scrutiny and the UT noted that in Philipson the imposition of wage conditions in the 59th month of a 60 month work permit amounted to an “intrinsic lack of justice”. Hence, clear and precise rules favoured the SSHD and could not be displaced by fairness but ambiguity and obscurity legitimised the assumption “that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness” [55].

Article 8’s interaction with fairness meant that issues arising out of the latter played a material part in ascertaining proportionality in effecting immigration decisions interfering with a person’s private and/or family life [57].

The UT found that F’s ILR application succeeded on the rules because, save new applicants and those switching into Tier 2 under transitional arrangement D, work permit holders have never been required to obtain a CoS.

Relying on [14] of Philipson, F maintained that she never needed a certificate of sponsorship because she came under the old work permit system and not the new PBS system and accordingly she never held a CoS [59].  Since there was no guidance as to the salary level applicable to her, paragraph 134(iv) would not apply and her claim to settlement should have been granted. If, somehow inconceivably, F did not succeed under Pankina and (subsequently) Alvi and the SSHD could disentitle her by using policy guidance, F still won because neither the Immigration Rules nor the policy guidance involved in her case required her to meet any “appropriate rate of pay” [60]. The SSHD’s counter argument that since (for job code 6115, care assistants and home carers) the lower rate of pay (£7.02 for applications under transitional arrangement D), rather than the higher rate of pay (£7.80 for new Tier 2 applications), was applied to her she suffered no injustice was rejected by the UT. (Transitional arrangement D also contained a concession that work permit holders switching into Tier 2 were not required to score points.)

The UT explained that its decision allowed people such as F, who had not been in the UK in an eligible category for five years or more, to apply for ILR but the bigger problem was that the SSHD was unable to overcome the hurdle “that the appellant simply does not have a certificate of sponsorship (and could not have been given one)” [61] – [62]. So the SSHD’s interpretation of the rules and related material was capable of causing unjustified unfairness which would fail the section 3(2) scrutiny process: likewise, the SSHD would not have deliberately framed rules barring settlement applications from people like F [63].

In relation to F’s article 8 rights, the SSHD and the UT accepted that notwithstanding the fact that they postponed their marriage until F’s visa problem was resolved, F’s relatively  recent relationship with M was nevertheless genuine and not designed to enable her to remain in the UK [65]. Although F met the requirements of the rules had she not done so the decision in her case, which was incapable of sustaining her removal, went against the Pankina and Alvi principle. Even if that had not been the case, F’s removal would be disproportionate under Razgar [2004] UKHL 27 because the strength of her right to her private and family life outweighed the diminished public interest under article 8(2), [68].

Therefore:

(1)           In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. In this way, the judge identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal’s subsequent case management directions.

(2)           Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant’s grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal’s administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal.

(3)           If an applicant who has been granted permission to appeal to the Upper Tribunal on limited grounds only applies to the Upper Tribunal on grounds in respect of which permission has been refused, the Upper Tribunal judge considering that application should not regard his or her task as merely some form of review of the First-tier Tribunal’s decision on the application.

(4)           Whatever may be the position in other Chambers of the Upper Tribunal, in the Immigration and Asylum Chamber the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 is unlikely to be advanced by adopting a procedure whereby new grounds of appeal can be advanced without the permission of the Upper Tribunal under rule 5 of those Rules.

(5)            The test enunciated by the Supreme Court in Alvi [2012] UKSC 33, for deciding whether material not contained in immigration rules can be relied upon by the Secretary of State in making decisions on the grant of leave to enter or remain, probes deeper than the “substantive/procedural” test articulated in the wake of Pankina [2010] EWCA Civ 719, in that it articulates what makes a particular provision one that has to be included in immigration rules: namely, does it amount to a condition of succeeding under those rules? However, there may still be difficulties in determining whether a particular requirement amounts to such a condition or is merely a “procedural” requirement.

(6)           Applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Alvi, Article 8, Immigration Rules, Philippines, Sedley LJ, Tier 2, Work Permits and tagged , , , . Bookmark the permalink.

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