Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06562/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th October 2017
On 13th October 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

ENTRY CLEARANCE OFFICER
Appellant
and

PRANAYA RAI
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr. D Balroop, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Kotas, Senior Presenting Officer

DECISION AND REASONS
1. The Entry Clearance Officer (hereinafter referred to as the "ECO") appeals with permission against the decision of the First-tier Tribunal (Judge Obhi) who, in a determination promulgated on the 24th January 2017 allowed the Respondent's appeal against the decision of the ECO to refuse to grant entry clearance to settle in the UK as the adult dependant relative of his father who is an ex-Gurkha soldier.
2. Whilst the Appellant in these proceedings is the Entry Clearance Officer, for the sake of convenience I intend to refer to the parties as they were before the First-tier Tribunal.
The background:
3. The Appellant applied for entry clearance to settle in the UK as the adult dependant relative of his father, an ex-Gurkha soldier.
4. The Respondent considered his application under the Home Office policy outlined in Annex K, IDI Chapter 15, section 2A 13.2 as amended on 5 January 2015 as well as under Paragraph EC-DR 1.1 of Appendix FM of the Immigration Rules. The Respondent noted that the Appellant's father and mother were issued with entry clearance on the 16th May 2011 and settled in the UK on 27 May 2012, under the 2009 discretionary arrangements.
5. The Respondent took account of the fact that in his application for settlement he stated that he was unemployed and supported by his sponsor but had not demonstrated how he was emotionally and financially dependent on his sponsor. Whilst he had presented only two Western union receipts dated 30/20/14 and 12/12/2014 respectively, there was no proof to suggest that the sponsor was sending regular financial support since leaving for the UK on the 27th May 2012. In the light of that, he was not satisfied that he was emotionally dependent on his sponsor as required under Annex K, Paragraph 9(5) of IDI Chapter 15 Section 2A 13.2.
6. Furthermore applying Paragraph 9(8) of Annex K and that the applicant must not normally have lived apart from the Gurkha sponsor for more than two years on the date of the application or at any time, unless the family unit was maintained albeit the applicant lived away as part of their full time education (boarding school, college or university) but resided in the family home during holidays. If these conditions are not met the application must be refused under the policy. Applying that to the Appellant, a copy of his passport showed that they had been living apart from the sponsor for more than two years. Thus he failed to show that he satisfied paragraph 9(8) and 19 of Annex K of the revised policy.
7. The Respondent also considered and refused the application under EC-DR1.1 of Appendix FM and under Article 8 of the ECHR. It was noted that if the Appellant could show that his father would have settled in the UK he had been able to before the historic wrong prevented him from doing so, at a time when the Appellant was still under the age of 18 and that will be a strong factor in favour of allowing the application. The ECM did not think that this applied to the Appellant because he noted that his parents did not leave to go to the UK until the Appellant was already an adult, and they knew that he would not, as an adult ordinarily be eligible to accompany them; that he had grown up in Nepal; his parents could return to live in they chose; that he had lived in Nepal three years of his own and that the Appellant had a sibling and other family members in the pool. He noted that the Appellant's parents had chosen to move to the UK without him. Consequently he was not satisfied that the historic wrong had affected his life to such an extent that he'd been prevented from leading a normal life.
8. The Appellant exercised his right to appeal that decision having submitted written grounds in support which expressly made reference to the Appellant circumstances which were relevant to the application of the revised policy. The appeal came before the First-tier Tribunal (Judge Obhi) on the 11 January 2017. He heard the oral evidence of the Appellant's parents and considered the documents provided and in a determination promulgated on 24 January 2017 allowed the appeal on human rights grounds. He found that the Appellant had been able to meet the requirements of Appendix K and there were "exceptional circumstances" in this appeal and thus allowed the appeal on human rights grounds.
9. The Entry Clearance Officer sought permission to appeal that decision on two grounds; firstly, that the judge failed to consider the issue of dependency in accordance with the decision in Kugathas, and secondly that the judge failed to consider section 117B of the Nationality, Immigration and Asylum Act 2002.
10. Permission was granted by the First-tier Tribunal on 31 July 2017.
11. Thus the matter came before the Upper Tribunal. Mr Kotas appeared on behalf of the Entry Clearance Officer (hereinafter referred to as the "ECO") and Mr Balroop of Counsel, who appeared before the First-tier Tribunal represented the Appellant. I heard submissions from each of the parties which I will go on to consider when reaching a decision on whether the determination of the First-tier Tribunal involved the making of an error on a point of law.
12. There are two grounds advanced by Mr Kotas on behalf of the Respondent. The first ground, as set out in the written grounds, is that the judge failed to properly apply the test in Kugathas v SSHD [2013] EWCA Civ 31. In particular, it is submitted that there was no evidence of dependency going beyond normal emotional ties and at [24] the judge had taken an expectation of future emotional support as meaning that Article 8 rights were engaged. In his oral submissions, Mr Kotas submitted that the judge made no findings as to whether there was any "emotional dependency" and thus the analysis of the judge was flawed.
13. Mr Balroop on behalf of the Appellant submitted that judge lawfully considered the issue of whether family life was engaged under Article 8 (1) of the ECHR and made adequate findings of fact on the evidence, which were in the main unchallenged, concerning financial dependency between the parties and also emotional dependence based on the ongoing communications between the family members via viper and family visits that had taken place.
14. I have considered the submissions in the light of the judge's assessment of the factual circumstances of the Appellant and his family members. There does not seem to be any dispute about the main factual circumstances. The Appellant was born in 1989 and that he was aged 26 when the policy to admit the adult children of former Gurkhas was introduced on 5 January 2015. His father was an ex-Gurkha who had served with the British Army Brigade of Gurkhas in the role of a warrant officer for 16 years and 124 days with exemplary military conduct. He was awarded with a long service and good conduct medal. The Appellant's parents moved to United Kingdom to live on 27 May 2012. These facts were uncontroversial and unchallenged.
15. As to the circumstances prior to his parents moving to the United Kingdom, it was the Appellant's claim that he had lived with them as part of the family unit and that he was and is both financially and emotionally dependent upon them. The judge recorded the Appellant's claim that paragraph 11 - 13 and the oral evidence very briefly at paragraph 16 - 18. It does not appear from the determination that the Appellant's father was subject to any significant cross-examination and paragraph 18 demonstrates the Appellant's mother was not cross-examined upon her evidence. The Appellant had stated that after his parents had left he found it difficult to live alone, was lonely and felt unable to function effectively and found it difficult to adapt to the day-to-day life that he now had. His parents had visited him from 20 April 2015 and 21 May 2015 after they had left Nepal. In terms of their circumstances, they have not been dependent on public funds and have worked full-time but could not get holiday from work to enable them to visit sooner. The Appellant said that he would be the support of his parents in their old age as they neared retirement ages.
16. As to his circumstances, he said that he had dropped out of full-time education due to personal problems but that he was now engaged further in studies; that he was in contact with his parents on a daily basis that they had sent him money to support him financially.
17. At paragraph 13 the judge summarised the typed grounds of appeal in which it was argued that but for the historic injustice the sponsor would have settled in the UK following his discharge from the Gurkhas in April 1988 and there is every likelihood that the Appellant would have been born in the UK and would have acquired the right to live here some time ago. In relation to the two-year separation from the sponsor and his wife, it is stated that if the Appellant had had the ability to do so he would have applied to come to the UK with his parents in 2012 but that he was unable to do so until the policy change in January 2015, making it the first opportunity when he could make that application.
18. At paragraph 14 to 15 the judge summarised the decision of the Entry Clearance Officer to which I have made reference to in the preceding paragraphs.
19. The judge set out his findings of fact and analysis of the appeal at paragraph 21 - 30 of the determination. The judge probably identified at [21] that this was a human rights appeal and that was the decision was made under the policy guidance contained in Appendix K of the Home Office policy IDI chapter 15 2A 13.2 the decision had to be seen in this context. Furthermore at paragraph 21 onwards he applied the relevant law for the Article 8 assessment beginning with the five stage approach set out in Razgar v SSHD [2004] UKHL 27.
20. The law has been stated in a number of cases and most recently in the decision of the Court of Appeal in Rai v ECO New Delhi [2017] EWCA Civ 320 which was decided after the decision of Judge Obhi.
21. In the case of Rai (as cited) the Court of Appeal set out the legal principles relevant to determining whether there is family life engaged in appeal such as this from paragraph 17 onwards. It observed that in the case of Kugathas v SSHD[2003] EWCA civ 31, Sedley LJ referred to dependency as "real" "committed" or "effective" support and that the Upper Tribunal had accepted in the case of Ghising (family life - adult - Gurkha policy) that the judgement in Kugathas "had been interpreted too restrictively in the past "and that it ought to be read in the light of the subsequent decisions of the domestic and Strasbourg courts" ( see paragraph [18]).
22. At paragraph 19, the court cited Lord Dyson M.R who would emphasised when giving the judgement of the court in Gurung (at paragraph 45), "the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case." In some instances "an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents."
23. At paragraph 20 the court also cited the observations of Sir Stanley Burnton in Singh v SSHD[2015] EWCA Civ 630 at [24]:
"24. I do not think that the judgement which I have referred leads to any difficulty in determining the correct approach to Article 8 cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life the purposes of Article 8. I point out that the approach of the European Commission of Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life the purposes of Article 8."
24. Lord Justice Lindblom made reference to the decision of the Upper Tribunal in Rai and observed that the single factor which seem to have weighed most heavily in the conclusion of the judge in that case was the Appellant's parents willingness to leave Nepal to settle in the UK when they did without focusing on the practical and financial realities entailed in that decision. At [39] the real issue under Article 8 (1) was whether, as a matter of fact, the Appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did ( see [39]). The court made reference to the circumstances of the Appellant and his family and the fact that he and his parents would have applied at the same time for leave to enter the United Kingdom and would have come together as a family unit had they been able to afford to do so. The court considered that this was a factor that had not been taken into account when it should have been. Thus the question of whether, even though the Appellant's parents had chosen to leave Nepal to settle in United Kingdom when they did, his family life with his parents subsisted then, and was still subsisting at the time of the Upper Tribunal's decision; this was "the critical question under Article 8 (1)."
25. The judge did not make any explicit reference to the case law which set out the relevant principles relating to family life between parents and adult children although at [25] he did make reference to the line of cases dealing with cases of adult children of Gurkhas. Consequently in the absence of a clear self-direction, the question is whether those principles were properly applied to the evidence in the appeal as reflected in the findings of fact. This is the first ground advanced by the Respondent.
26. As the decision in Rai makes plain, the critical question is whether as a matter of fact, the Appellant demonstrated that he had family life with his parents which had existed at the time of their departure to settle in the UK and that it endured beyond it (see paragraphs [39] [42] of Rai). This is of particular significance because the ECO in the decision letter made reference to the Appellant's parents choosing to apply the settlement and their decision to move to the UK in his assessment.
27. The judge's assessment of the facts which in the main appear to be unchallenged, was that the family had lived as a family unit until the time that his parents had left Nepal (see [23)). The judge set out the evidence in this respect at [22] where he recorded that the Appellant had never been separated from his parents up until the time his parents had left. They had lived as a unit up until that time. The judge noted that when the Appellant's father had been discharged from the Gurkhas in 1988 he returned to Nepal but did not find work easily and was forced to find other occupations which had resulted in further separations from the family. During his time as a Gurkha he had had very little home leave and thus was living away from his family for long periods at a time. He had been unable to come to the UK and settle here and therefore it was not a matter that he had considered at the time. It was only when the policy changed that he decided to settle in the UK. He could not bring his son with him at that time because he could not afford to do so financially.
28. The judge made a finding that [23] that he was satisfied that the Appellant had been living as part of the family unit with his parents until the time when they decided to come to the UK. He took into account the argument advanced by the ECO that the parents had "chosen" to come to the UK but that the decision to do so was "a natural and understandable" decision on the part of the sponsor. The judge accepted his claim that "had he been able to do so he would have brought the Appellant with him. They were living as part of a household, he is the only son, and he tells me, and I accept that culturally is the only son he would be expected to continue to live with them, and in time support them in their old age."
29. The judge also found that the Appellant was financially dependent on the sponsor and gave reasons for this at [22]. The judge made reference to the financial circumstances of the sponsor at the time he left Nepal which was that he only had income from his pension which was paid into a particular account with a bank. On leaving Nepal the account was under the control of his daughter, who was older, and that she withdrew that money using it for the benefit of the Appellant. The judge found that as he had been unemployed during this time, he was satisfied that he had access to the funds as there was no other source of income for him. He considered the documentary evidence and the bank statements which demonstrated the money was being withdrawn at a time when the sponsor was not in the country and that his daughter had authority to withdraw the money for the benefit of the Appellant. He further found that the financial remittances as evidenced by the receipts (and referred to in the decision letter) had been provided in addition to the monies from the sponsor's account. Thus the judge found that he was and remained financially dependent on his parents.
30. At paragraph [28] he made a further finding that the Appellant was dependent upon his father as he was in full-time education that it was paid for by his father and that this was in contrast to the sponsor's daughter, who was living independently.
31. The evidence and findings made as to emotional support are set out at [24] and [28]. Contrary to the Respondent's grounds, I accept the submission made by Mr Balroop that at paragraph [24] the judge was not making reference to future emotional support but that he was in fact referring to the nature of the emotional support that the Appellant had with his father whilst in Nepal which would be likely to endure if they resumed living together. The judge had made reference to the cultural expectation upon which their family life had been premised in Nepal as the Appellant was the only son of the sponsor and would be expected to live with his parents. However the judge was also considering this in the context of the circumstances in which the Appellant's father had left the Appellant in Nepal (see [23]). The continuing emotional support and dependency between the Appellant and his father was also expressed in the evidence in the witness statement and the continuation of the daily communications through viper evidenced in the papers at pages 127 - 137 and the witness statement at paragraph 11( see finding at[28]).
32. I am satisfied that the judge properly focussed on the question of family life and his approach to that question was entirely consistent with that set out in Gurung, where the Court of Appeal said at [45]: " Ultimately, the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case" and at [46] endorsed the guidance in Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160. The judge asked himself the relevant question, namely whether there existed emotional and other ties over and above the normal ties between adult family members and set out in his findings of facts his assessment of the evidence which was rationally open to him. Consequently the judge did apply the relevant principles and it was open to the judge on the evidence that was before him and the light of the factual assessment that he made to reach the conclusion that family life had been established between the Appellant and his parents (see [24]). The first ground therefore is not made out.
33. Dealing with the second ground advanced on behalf the Respondent, it is submitted that the judge failed to properly apply the provisions of section 117B of the 2002 Act. It was conceded in the ECO's grounds that the Appellant could rely on the historic injustice argument but that this was only one of several factors. His oral submissions, Mr Kotas submitted that contrary to the judges assessment, the Appellant could not meet the policy requirements (paragraph 9 (8) of annex K of the revised policy) therefore, he submitted the proportionality analysis is flawed and that the public interest considerations in this appeal were strong because he was unemployed and could not speak English.
34. By way of reply, it was submitted by Mr Balroop that the judge had found that the Appellant could meet the rules (see [29]) and that there were "exceptional circumstances" in this particular Appellant's case. In the context of paragraph 9(8) he submitted the judge considered this issue at [26 - 28] and that whilst it had been stated that the Appellant and the sponsor should not have lived separately from more than two years, that this was not an absolute bar and that each case should be determined on its facts and the judge had made reference to a letter from the Home Office at page 144 of the bundle.
35. He further submitted that in the light of the findings made by the judge, which had resolved all the issues under the policy in favour of the Appellant, including that he satisfied paragraph 9 (5) relating to emotional and financial dependency and paragraph 9(5), this was an answer to the public interest considerations. He submitted that the policy was the Respondent's view of where the public interest lay and if met it would be wrong to go on and consider the section 117 public interest considerations. In the alternative he submitted as in the decision of Rai, that in light of the historic injustice argument this was of such significant weight that the balance was in favour of the Appellant. As to his English language ability, he submitted that he had passed the IELTS and had undertaken educational studies in English as evidenced in the leaving certificates in the Respondent's bundle. He had also passed a certificate in computing in 2011.
36. I have considered those submissions. The decision made by the judge was summarised at paragraph [29] that the Appellant had met the requirements of Appendix K (the policy) and that "had the sponsor been able to do so, he would have sought his son's entry to the UK much sooner that he did. There are exceptional circumstances in this case and therefore the Appellant should be given leave to enter and join his parents." He allowed the appeal on human rights grounds.
37. Earlier in the determination he had made reference in the proportionality assessment to the issue of "historic injustice" [25] and the weight attached to this as set out in the cases of Gurung and Ghising (see paragraphs 59 and 60 of Ghising and others (Gurkhas/BOC's; historic wrong: weight) [2013] UK UT00567.

38. The Court acknowledged in Gurung and Others [2013] EWCA Civ 8 the importance of the issue of historic injustice and at paragraph 38 the court observed that "the historic injustice is only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. It is not necessarily determinative. If it were, the application of every adult child of a UK settled Gurkha who establishes that he has a family life with his parent would be bound to succeed". At paragraph 42 the court held that "If a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now) adult child would have been able to accompany him as a dependent child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now".
39. In the decision of Ghising and others(Gurkhas/BOC's ; historic wrong: weight) [2013] UK UT00567 at paragraphs 59 the Tribunal considered the issue of weight to be attached to the issue of historic injustice as follows:
"59. That said, we accept Mr Jacobs'submission where article 8 is held to be engaged and the fact that but for the historic wrong the Appellant would have settled in the UK long ago is established, this will ordinarily determine the outcome of the proportionality assessment; and determine it in an Appellant's favour. The explanation for this is to be found, not in any concept of new or additional "burdens" but, rather, in the weight to be afforded to the historic wrong/settlement issue in a proportionality balancing exercise. That, we consider, is the proper interpretation of what the Court of Appeal was saying when they referred to the historic injustice as being such an important factor to be taken into account in the balancing exercise. What was crucial, the court said, was the consequence of the historic injustice, which was that Gurkhas and BOC's:
"were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child of a Gurkha who settled in the UK has such a strong claim to have his article 8 (one) right indicated, notwithstanding the potency of the countervailing public interest in maintaining of a firm immigration policy." [41]
In other words, the historic injustice issue will carry significant weight, on the Appellant cited the balance, and is likely to outweigh the matters relied on by the Respondent, where these consist solely of the public interest just described."
40. At paragraph 60 the Tribunal went on to state;
"once this point is grasped, it can immediately be appreciated that they may be cases where Appellants in Gurkha cases will not succeed, even though their family life engages article 8 (one) and the evidence shows that they would come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here on completion of his military service. If the Respondent can point to matters over and above the "public interest in maintaining of a firm immigration policy", which argue in favour of removal or the refusal of leave to enter, these must be given appropriate weight in the balance in the Respondent's favour. Thus, about immigration history and/or criminal behaviour may still be sufficient outweigh the powerful factors bearing on the Appellant side. They being an adult child UK settled Gurkha ex-serviceman is, therefore, not a "trump card", in the sense that not every application by such a person will inevitably succeed. But, if the Respondent is relying only upon the public interest described by the Court of Appeal at paragraph 41 of Gurung then the weight to be given to the historic injustice will normally require a decision in the Appellant's favour."
41. By reason of his earlier findings, whereby he reached the conclusion on the evidence that the Appellant was emotionally and financially dependent on the sponsor, the judge found that he had satisfied paragraph 9 (5) of appendix K and thus resolved that issue in favour of the Appellant.
42. The remaining issue identified in the decision letter related to paragraph 9 (8) and the two-year separation. The judge considered this at [28] and in line with the letter from the Respondent at page 144 of the bundle which was a letter to the director of communications sent on 9 April 2015. This letter made reference to the requirements of the new 2015 policy. The letter set out "this is just one factor which it may be appropriate to consider rather than a hard and fast instruction that all cases must result in refusal. The same applies to circumstances in which the applicant has been living apart from the sponsor for more than two years. Each application must be determined on a case-by-case basis and if there are circumstances which an applicant feel the decision-maker should consider is important the full details of these are provided by the applicant so that the Home Office can consider all the relevant factors in making their decision."
43. The judge at [28] found that there were good reasons on the evidence given by the Appellant as to why they had lived separately for more than two years. In accordance with the letter he found that doing so was not an "absolute bar" to refusal and that "each case must be determined on its own facts". The "good reasons" for the delay found by the judge were that when the sponsor came to the UK he did not know that he could bring his son with him, and secondly, he did not have the financial means at that time, and thirdly he could not maintain the family unit by family visits because they could not afford to do so but that they did maintain the family unit with the provision of financial support and through communications via Viper. However all page 144 states is that there may be circumstances (such as those which were said to exist in this appeal) which could mean that the instructions should be considered in the light of those particular factors and that the Appellant should provide such detail so that the decision-maker can consider all the relevant factors. Those issues were set out in the grounds of appeal. In essence, the judge found that if the Entry Clearance Officer had taken into account those particular findings of fact when reaching a decision, that the Appellant would have met the policy under paragraph 9 (8).
44. This was a human rights appeal and therefore section 117B public interest considerations did apply when considering the issue of proportionality. However, it is plain from the determination that the judge, in reaching a decision on the proportionality balance considered that as the Appellant had met the requirements of the policy and as a result of the significant weight attached to the historic injustice argument as set out at [25] this was sufficient to outweigh any public interest considerations. The judge concluded, having satisfied on the evidence before him that, but the historic wrong, the Appellant would have settled in the U.K. as a child, he found that this ordinarily would be sufficient to outweigh the public interest in maintaining immigration control. In this appeal, the Respondent has not relied on any countervailing factor, such as poor immigration history or criminality that would have been capable of displacing that presumption.
45. It is true that he made no reference to the section 117 public interest considerations under the 2002 Act, which is an error of law. However as Mr Balroop submitted, having found that the policy requirements were met and in view of the significant weight attached to the historic injustice, such consideration would have made no material difference to the outcome of this appeal. I agree with that submission. The judge gave adequate and sustainable reasons for finding that there was family life and dependency between the parties and having reached conclusions in the affirmative to the first four questions in Razgar, went on to consider the issue of proportionality. Having found that the Appellant met the requirements of the policy, that being the Respondent's view of where the public interest lay, must of itself be of significant weight. In addition, the judge made reference to the issue of historic injustice, which although not determinative, must be given significant weight also for the reasons identified by the Upper Tribunal in Ghising and others (Ghurkhas/BOC's: historic wrong; weight[2013] UKUT 00567 at paras 59-60.
46. It has not been demonstrated by the Respondent that the two considerations identified by Mr Kotas; ability to speak English and financial independence, would have outweighed those two significant considerations. In any event, there was evidence before the judge that he could speak English (as evidenced in his school certificates which had been in the Respondent's bundle). He was not financially independent (although his parents were) but this is not surprising given that in order to satisfy the policy he would have to show that he was financially dependent upon his parents. No other public interest considerations were stated to be relevant by Mr Kotas and consequently I do not find that those two considerations, even if taken into account, would have been of such great or significant weight to have outweighed the other issues identified by the judge in this appeal, namely that he met the requirements of the policy and the significant weight attached to the historic injustice argument.
47. I therefore find that even if the judge was in error by not making reference to s117B, it was not material in the light of the matters set out above and does not justify the setting aside of the decision. The decision of the First-tier Tribunal shall stand; the appeal of the Respondent is dismissed.

Notice of Decision

The decision allowing the appeal made by the First-tier Tribunal shall stand; the Respondent's appeal shall be dismissed.

No anonymity direction is made.

Signed Date: 12/10/2017

Upper Tribunal Judge Reeds