HU/11375/2016 & HU/11380/2016

• Status of case: Unreported
• Hearing date: 15 Feb 2018
• Promulgation date: 7 Mar 2018
• Publication date: 23 Mar 2018
• Last updated on: 23 Mar 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/11375/2016
hu/11380/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 15th February 2018
On 7th March 2018



Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Sunilkumar Parmar
Dharmishthaben Jashvantbahi Parmar Parmar
(anonymity direction not made)
Respondents


Representation:
For the Appellant: Mrs H Aboni, Home Office Presenting Officer
For the Respondents: Ms S Praisoody, Counsel instructed by Deccan Prime Solicitors


DECISION AND REASONS

EXTEMPORE JUDGMENT
1. The Appellant in these proceedings is the Secretary of State who was the Respondent in the proceedings before the First-tier Tribunal. For the sake of convenience I shall refer to the parties as they were known at the First-tier Tribunal. The Appellant applied for leave to remain on the basis of his family and private life. The application was refused by the Respondent on the basis that the Appellant had previously used deception in obtaining his English language certificate. In those circumstances the Respondent's view was that the public interest in the proportionality exercise fell against the Appellant and for removal. The matter came before the First-tier Tribunal and the judge concluded that the Appellant had not been shown to have exercised deception in obtaining his English language certificate and allowed the appeal.
2. The Respondent appeals with permission on the basis that the judge has allowed the appeal on a basis that it is not clear from the decision, and argues that the findings in respect of the English language certificate were flawed by a failure to apply the appropriate burden and standard of proof, and that in any event the judge has failed to make any findings in respect of Article 8 and failed to conduct a proportionality exercise.
3. At the hearing before me both representatives were in agreement that the decision of the First-tier Tribunal is flawed by legal error in that the judge has failed to provide any reasoning in relation to the only ground of appeal that was open to the Appellant namely the ground that the decision interfered with his human rights. Both representatives were in agreement the decision could not stand and must be set aside. The factual matrix of the remaking of the decision is too broad to be undertaken at the Upper Tribunal and it is appropriate in those circumstances for the matter to be remitted be heard at the First-tier Tribunal. The representatives were in agreement that the matter should be remitted de novo so that all matters remain outstanding before the First-tier Tribunal.
Notice of Decision

The decision of the First-tier Tribunal is set aside for legal error on the grounds set out above and the matter is to be heard de novo by a judge other than Judge Juss.

No anonymity direction is made.



Signed Date


Deputy Upper Tribunal Judge Davidge