HU/03138/2015

• Status of case: Unreported
• Hearing date: 24 Jan 2017
• Promulgation date: 1 Feb 2017
• Publication date: 10 Sep 2021
• Last updated on: 10 Sep 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03138/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 24 January 2017
On 01 February 2017



Before

The President, The Hon. Mr Justice McCloskey
and
Upper Tribunal Judge Justice Lavender


Between

MRS TANIA JAHANGIR
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr A Iqbal of Iqbal Law Chambers Ltd
For the Respondent: Mr Wilding, Home Office Presenting Officer


DECISION AND REASONS
(1) This is an appeal against the decision of the First-tier Tribunal promulgated on 22 August 2016. It is accepted that the scope of the appeal before the First-tier Tribunal was shaped by the relevant Article 8 provisions contained in Appendix FM and the residue of Article 8 itself. The main error of law canvassed on behalf of the Appellant is that the judge fell into error in paragraph 19 of the determination where he said:
"turning to the issue of Article 8 I accept that there is a genuine and subsisting relationship between the Appellant and the Sponsor and that they do intend to live together permanently".
He decided, however, that the decision of the ECO was in accordance with the law on the basis of the evidence that was before him.
(2) The crux of the grounds for permission to appeal focuses on that passage in the First-tier Tribunal's decision. The question which arises is whether the further evidence adduced on behalf of the Appellant before the First-tier Tribunal could properly be considered by that Tribunal having regard to section 85(4) of the Nationality, Immigration and Asylum Act 2002. This empowers the Tribunal to consider any matter which it thinks relevant to the substance of the decision including a matter arising after the date of the decision. Bearing in mind in particular that Article 8 lay at the heart of (a) the application to the Entry Clearance Officer, (b) his decision, and (c) the grounds of appeal to the First-tier Tribunal we consider that there was no prohibition of the kind to which the judge averts in paragraph 19 of his determination.
(3) In other words all of the evidence adduced before the First-tier Tribunal should properly have been considered in the round by the judge. The judge's failure to do so on the ground of the self-denying ordinance erected in paragraph 19 was plainly erroneous in law having regard to section 85(4) of the 2002 Act. The materiality of this error is beyond plausible dispute. It follows that the decision of the First-tier Tribunal must be set aside.
(4) Having regard to our primary decision, namely that the decision of the First-tier Tribunal is infected by a material error of law that decision has to be re-made. It can re-made in one of two ways either by remittal to a differently constituted First-tier Tribunal or by this Tribunal. This is not one of those cases where we require to remit it and the obvious course is firstly to retain the appeal in this form and secondly to re-make the decision of the First-tier Tribunal by allowing the Appellant's appeal and we do so.

Notice of Decision
The appeal is allowed on human rights grounds.
No anonymity direction is made.



THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 01 February 2017