This appeal was heard at the Upper Tribunal (“UT”) on 02/07/18 before Mr. Justice Lane President. The appeal considered the effects of poor professional immigration advice or services on the Appellant’s protected private or family life in the UK.
The Appellant is a citizen of Bangladesh born in 1980. He arrived in the UK in April 2005, as a student, and was granted further leave to remain under the same category until 2010. The Appellant was then granted leave to remain until March 2012 for post-study work. Prior to the expiry of his leave, the Appellant submitted a successful application to extend his leave as a student which was granted until 31/07/13.
In July 2013, and before the expiry of his leave, the Appellant applied for leave to remain as a Tier 2 (General) Migrant. The Respondent refused this application on 02/10/13 and the Appellant appealed the decision. The appeal was subsequently dismissed, by the First-tier Tribunal (“FTT”), on 07/08/14.
The Appellant made an application to the FTT for permission to appeal to the UT which was refused and subsequently made an application for permission to appeal the FTT decision directly to the UT. As a consequence, the Appellant’s leave between March 2012 to 31/07/13 was extended by virtue of 3A(2)(c) of the Immigration Act 1971 (as amended) which provides that “leave is extended during any period when an appeal is pending within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002.” And “Section 104(2)(a) provides that an appeal is pending while an application for permission to appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination.”
On 07/10/14, the Appellant instructed Immigration & Work Permit Ltd (“IWP”), a firm regulated by the Office of the Immigration Services Commissioner and an application for leave to remain as a Tier 4 (General) Student was submitted on the same day. The Appellant’s position was that he had instructed IWP to withdraw his pending application . The application was not withdrawn until 10/10/14.
The effect of the failure to withdraw the application was that section 3(C)(4) was invoked meaning that the application of 07/10/14 was rendered invalid as the provision stipulates;
“(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.”
The Appellant was not notified of the invalidity of the application by the Respondent until a few months later on 29/03/15. Prior to this, the Respondent had incorrectly written to the Appellant on 07/11/14 to confirm that his application was in fact valid. The Appellant argued that had he been informed of the invalidity of the application of November 2014 rather than several months later, he would have been in a better position to regularise his stay.
On 21/04/15, the Appellant applied for indefinite leave to remain in the UK relying on paragraph 276B of the Immigration Rules on the basis of ten years’ continuous lawful residence. The Respondent refused the Appellant’s application on 15/07/15 confirming that he was without valid leave between 21/10/14 until 20/04/15. The Respondent also refused the Appellant’s human rights claim.
The OISC investigated the matter and found that the Appellant’s advisers had failed to provide “competent and diligent representation”.
Decision of the UT
President Lane held that the FTT Tribunal had erred in law and that;
“(1) Poor professional immigration advice or other services given to P cannot give P a stronger form of protected private or family life than P would otherwise have.
(2) The correct way of approaching the matter is to ask whether the poor advice etc that P has received constitutes a reason to qualify the weight to be placed on the public interest in maintaining firm and effective immigration control.
(3) It will be only in a rare case that an adviser’s failings will constitute such a reason. The weight that would otherwise need to be given to that interest is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes such advice will normally have to live with the consequences.
(4) A blatant failure by an immigration adviser to follow P’s instructions, as found by the relevant professional regulator, which led directly to P’s application for leave being invalid when it would otherwise have been likely to have been granted, can, however, amount to such a rare case.”
The President of the UT allowed the appeal on the facts, finding that to remove the Appellant now would amount to a disproportionate interference with his Article 8 rights to a private life in the UK.