Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal: HU/01967/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2016
On 11 November 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

YUNFEI ZHANG
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr P Singh, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of China born on 24 July 1980. He arrived in this country on 1 October 2009 with entry clearance as a post study partner valid until 20 February 2011. An application on 15 February 2011 for an extension of stay as a dependent partner was granted until 2 October 2012. On 1 October 2012 an application for leave to remain as a spouse of a settled person for 30 months was granted and the appellant's leave was extended until 26 August 2015.
2. On 25 August 2015 the appellant lodged an application for indefinite leave to remain as the spouse of a person present and settled in the United Kingdom. This application was refused on 10 January 2016.
3. The appellant appealed and his appeal came before a First-tier Judge on 4 May 2016 to be determined as a paper case.
4. The First-tier Judge observed that the appellant had lodged little documentation to support his application. The judge found that the appellant had not applied for leave to remain in a marriage category until after 9 July 2012. He had been granted entry clearance in 2009 and an extension to that clearance in February 2011 as a post study partner. The judge stated:
'The applicant was only granted leave to remain as a spouse of a settled person, a different category, in October 2012. His application therefore falls to be determined Under Appendix FM of the Immigration Rules."
5. The judge found there were no documents to support the claim that the appellant met the requirements under the rules for indefinite leave to remain as a partner and dismissed the appeal under the rules and on human rights grounds.
6. The appellant appealed and a First-tier Judge considered the grounds and granted permission, commenting:
7.
"There is no respondent's bundle in my paperwork, although the judge says such a bundle was before her, as a result I cannot see the basis of the respondent's refusal. The applicant put before the judge in the paperwork a complicated proposition, albeit in letter form, as well as the respondent's transitional provisions with highlighted passages, which he suggests apply to him, none of which appear to have been dealt with. It is arguable even if the decision is correct, insufficient reasons have been given to show why the applicant's proposition is not in fact correct."
8. Mr Singh helpfully supplied me with the relevant transitional provisions. He referred to the proposition set out in the appellant's grounds at paragraph 4.5.5 which reads as follows:
"PBS dependants who have already switched to being the partner of a settled person under Part 8 (or have applied to do so before 6 April 2014) can continue under Part 8 and apply for indefinite leave to remain under paragraph 287 or 295G. Their period of leave as a PBS dependant can be combined with their leave as the partner of a settled person to meet the required qualifying period."
9. Mr Singh said that the appellant had been granted leave to remain under Part 8 of the immigration rules and the Secretary of State had made a mistake when considering the application. Mr Singh referred to the Immigration Directorate Instructions (IDIs), the transitional provisions and to the relevant rules in Part 8. Paragraph 287 (a) (i) (d) provided for indefinite leave to remain as a spouse where "the applicant was admitted to the UK or given an extension of stay as a spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these rules and has completed a period of 2 years as a spouse or civil partner of the person who is now present and settled here?"
10. Mr Singh was able to confirm that the appellant qualified for indefinite leave to remain as the spouse of a person present and settled in the United Kingdom and that the First-tier Judge had not properly directed herself by reference to the IDIs and the transitional provisions.
11. It is accepted that the appeal should be allowed under the immigration rules. It is not in the premises necessary to disturb the judge's conclusions on the human rights grounds. In fairness to the First-tier Judge it was difficult to determine this appeal where neither party was represented and where the respondent had made a mistake in dealing with the application as Mr Singh accepted. The determination was materially flawed in law and I re-make it.
Appeal allowed under the immigration rules

Anonymity Direction
The First-tier Judge made no anonymity order and I make none.
Fee Award
Any fee paid by the appellant should be returned to him.

Signed
G Warr, Judge of the Upper Tribunal
3 November 2016