Upper Tribunal (Immigration and asylum chamber), 2015-08-14, IA/30363/2014
| Jurisdiction | UK Non-devolved |
| Date | 14 August 2015 |
| Published date | 09 December 2015 |
| Hearing Date | 15 May 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/30363/2014 |
Appeal Number: IA/30363/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30363/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15th May 2015 |
On 14th August 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS
Between
MS MUMA SINKALA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr I Jarvis, Home Office Presenting Officer
For the Respondent: Mr C Ijezie, Solicitor
DECISION AND REASONS
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The Appellant is a citizen of Zambia born on 8th October 1989. The Appellant’s immigration history was that she arrived in the UK in September 2007 with leave to remain in the United Kingdom as a student. This leave was subsequently extended until 14th May 2014 as a Tier 1 Post-Study Migrant. Prior to expiry of her visa the Appellant applied for leave to remain in the United Kingdom and by Notice of Refusal dated 14th July 2014 the Appellant’s application was refused on the basis that she did not meet the requirements of the Immigration Rules and that there were no exceptional circumstances which would bring the Appellant within the provisions of Article 8 outside the Immigration Rules.
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The Appellant appealed and the appeal came before First-tier Tribunal Judge Nixon sitting at Birmingham on 12th November 2014. The Appellant’s case before the First-tier Tribunal Judge was that she had developed a private life in the UK, had filed additional Grounds of Appeal under Section 120 of the Nationality, Immigration and Asylum Act 2002 and argued that she had a right of abode in the United Kingdom as she was in fact a British citizen. Arguments in support of such contention were that both her parents, grandparents and great-grandparents were citizens of the UK and colonies and that she therefore qualified as a British citizen and was entitled to such a right of abode. In a determination promulgated on 18th November 2014 the Appellant’s appeal was dismissed under the Rules and on human rights grounds.
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On 27th November 2014 the Appellant lodged Grounds of Appeal to the Upper Tribunal. On 12th January 2015 First-tier Tribunal Judge Shimmin granted permission to appeal. Judge Shimmin noted that the Grounds of Appeal argued that on the basis of the findings made by the judge as to the status of the Appellant’s parents the judge erred in finding the Appellant was not entitled to a right of abode.
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On 23rd January 2015 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response submitted that the Appellant’s grounds were purely opportunistic and merely sought to detract from the very proper, reasonable and sustainable findings of the First-tier Tribunal Judge. The Rule 24 reply noted that the Appellant had purported to rely on post-decision evidence submitted with her application for leave to appeal and that there was no compelling explanation or reason offered why those documents were not submitted in support of the original application.
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The appeal came initially before me to determine whether or not there was a material error of law on 20th February 2015. At that hearing the Appellant appeared by her instructed solicitor Mr Ijezie and the Secretary of State by her Home Office Presenting Officer Mr Jarvis. They continue to be the legal representatives at the restored hearing.
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I was satisfied that there was a material error of law in the determination of the First-tier Tribunal Judge. In particular by disposing of the appeal by stating that the evidence relating to the grandparents is sufficient is I found a material error of law when it seemed to me as a matter of law it was necessary to look at the parents’ position and that it was necessary for the judge to go further and to provide detailed findings based on the factual situation and the relevant statutory authorities.
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The findings of fact as against the analysis as to whether there is a right of abode are not challenged and consequently I was satisfied that the correct approach in this matter was to find that there was a material error of law, to set aside the decision of the First-tier Tribunal, and to adjourn the hearing reserving it to myself within the Upper Tribunal to be disposed of by way of submissions at a time and date to be fixed. I noted that both legal representatives personally wished to appear at the restored hearing. As set out in the directions whilst the Appellant was perfectly entitled to and may well wish to, attend the next hearing if the venue were to be somewhere that was not convenient to her then I was, bearing in mind the matter would be dealt with by submissions alone be prepared to excuse her attendance.
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I gave directions for the hearing of this matter and noted that the only issue outstanding is whether or not the Appellant is entitled under statutory authority, in particular the terms of the British Nationality Act 1981, to automatically be entitled to British citizenship and a right of abode. In accordance with my directions I am very helpfully provided by Mr Jarvis and Mr Ijezie with the following
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A background statute and guidance bundle.
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An extensive Appellant’s bundle extending to 199 pages.
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A consolidated bundle of Practice Directions.
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Skeleton argument on behalf of the Respondent.
Relevant Issues
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Both skeleton arguments produced to me which form the principal thrust of the submissions are most helpful. From them the following questions are, it is submitted to me, of relevance
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Did the Appellant’s parents have citizenship of the United Kingdom and colonies status before Zambian independence in 1964?
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Was the Appellant’s paternal grandfather a British subject on 1st January 1949?
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In any event were the Appellant’s parents citizens of the United Kingdom and colonies (CUKCs) after Zambian independence in 1964?
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In the alternative – did the Appellant’s parents have the right of abode for the purpose of Section 2(1) of the 1971 Act?
The Appellant’s Evidence
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Whilst no evidence was given before me by the Appellant in order to set out the background of this matter it is appropriate to recite the historical facts. The Appellant states that her mother Mrs Pauline Sinkala was born on 11th May 1959 as a citizen of the United Kingdom and colonies (CUKC). Her parents and mother were born British subjects in 1924 and 1939 respectively and her paternal grandfather and paternal grandmother were, it is contended, British subjects at the time of her father’s birth in 1924. Her paternal grandfather had been born in 1902 and her paternal grandmother in 1920. The Appellant’s maternal grandparents were British subjects at the time of her birth in 1939 her maternal grandfather having been born in 1903 and her maternal grandmother in 1905. Her maternal grandmother obtained her Zambian citizenship on 23rd March 1976 without losing her CUKC status and in 1988 entered the UK to join her father who was studying at the time. At the time of entry into the UK she did not need a visa and did not apply for one.
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The Appellant believes her father’s lineage was that he was born a citizen of the UK and colonies on 26th March 1958 in the British Colonial Protectorate of Northern Rhodesia. The Appellant’s father’s parents were born British subjects in 1935 and 1949 respectively. The Appellant’s maternal grandmother is still alive. The Appellant’s father’s grandparents were British subjects at the time of her father’s birth in 1935. Her father’s maternal grandparents were British subjects at the time of his mother’s birth in 1949. Her father obtained his Zambian citizenship on 14th October 1977 without losing his CUKC status. In October 1987 he entered the UK for further studies and at the time of entry did not need a visa nor did he apply for one.
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The Appellant was born on 8th October 1989 at Liverpool General Hospital. She lived with her parents in the UK for slightly over a year after she was born and re-entered the UK in 2007 with a student visa valid until 31st March 2008 which was subsequently extended to 31st October 2011. She was subsequently granted post-study work leave valid until 14th May 2014 when she submitted the application for further leave which has led to the current appeal.
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It is the Appellant’s contention that she qualifies as a British citizen and/or is entitled to right of abode. She is of good character and conduct and does not have any criminal record. She has been in the UK for a period of eight years and has developed family and private life here. Since 2003 she has worked for Santander Bank plc. She has close relatives living in Sheffield who are settled here. It is against that background that this...
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