AA/06734/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06734/2015


THE IMMIGRATION ACTS


Heard at Manchester
Decision & Reasons Promulgated
On 29th July, 2016
Signed and sent to
Promulgation on 8th
August, 2016.
On 9th August, 2016




Before

Upper Tribunal Judge Chalkley

Between

[m d]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr S Vokes of Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer


DECISION AND REASONS


1. The appellant is a citizen of Mongolia, born on [ ] 1983. She appealed to the First-tier Tribunal against the decision of the respondent taken on 1st April, 2015, to direct her removal from the United Kingdom. The appellant arrived in the United Kingdom on 30th October, 2009. She was in possession of a student visa made on 6th October, 2009, expiring on 6th October, 2010. On 6th October, 2010, she made an application for leave to remain which was refused on 9th November, 2010, although the appellant says that she did not receive the decision letter.

2. Whilst in the United Kingdom the appellant met her husband, [HK], who had been granted refugee status in 2001. They met in 2010 and in 2012 they were married in a Muslim ceremony and subsequently married under United Kingdom law on 29th July, 2014. On [ ] 2014, their son [D] was born. Because [D]'s father had settled status as a refugee, [D] is a British subject. It appears that the fact that [D] is a British subject may have been overlooked previously by the Respondent.

3. At the hearing before me today Mr Vokes drew my attention to policy guidance in respect to Appendix FM, paragraph 11.2.3, "where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU". The case must always be assessed on the basis that it would be unreasonable to expect a British citizen child to leave the EU with that parent or primary carer.

4. Recognising that this policy was applicable Mr Harrison, quite rightly in my view, indicated to me that he agreed that the appeal of the appellant should be allowed. This determination is written as a matter of record. I set aside the decision of the First-tier Tribunal Judge. The appellant's appeal is allowed.

Notice of Decision

The appellant's appeal is allowed.


Richard Chalkley
Upper Tribunal Judge Chalkley




TO THE RESPONDENT
FEE AWARD

No fee was payable therefore there can be no fee award.


Richard Chalkley
Upper Tribunal Judge Chalkley