Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00022/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 12th June 2013
On 13th June 2013

Before

UPPER TRIBUNAL JUDGE MARTIN
dEPUTY Upper Tribunal Judge grimes

Between

mRS DEVI RANA BIRA
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant : Ms H Horsley, Home Office Presenting Officer
For the Respondent : Not Represented

DETERMINATION AND REASONS

1. This is an appeal to the Upper Tribunal by the Secretary of State, with permission, in relation to a determination of First-tier Tribunal Judge Malins promulgated on 15th April 2013.
2. The Respondent before the Upper Tribunal was not represented nor was she present. That was because an Admin error on the part of the Tribunal had led to the representatives being informed the evening before that the hearing had been adjourned. However for the reasons that follow we proceeded to hear the case as there was no disadvantage to the Respondent in our doing so.
3. The claimant had applied on 20th March 2012 for indefinite leave to remain in the UK on the basis of her marriage. She had previously been granted, on 22nd December 2009, leave to remain in the UK for two years and three months expiring on 22nd March 2012 on the basis of her marriage.
4. The Secretary of State refused the application in a decision dated 4th December 2012.
5. In its determination the First-tier Tribunal Judge noted that the Secretary of State had considered the application under paragraph 284 of the Immigration Rules and noted that the Refusal referred only to one aspect of paragraph 284; the failure of the claimant to produce the appropriate language certificate. The Judge found that a valid certificate from a registered education provider had been submitted and allowed the appeal.
6. The judge said at paragraph 8 (c):-
“Accordingly, this single issue appeal, is allowed."
7. It is in relation to that sentence that the Secretary of State sought permission to appeal. The Secretary of State submitted that this was not a "single issue appeal". She asserted that the Refusal dated 4th December 2012, as well as considering the English language issue, considered the maintenance requirement in the second half of the second page and found the claimant did not meet the requirements of the rules (E-LTRP.3.1).
8. An examination of the Refusal reveals that the Secretary of State’s grounds are correct to that extent. The Refusal starts by saying that an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied each of the requirements of paragraph 284 is met.
9. It then goes on to refer to paragraph 284 (i)(a) with regard to the requirement to provide an English language test certificate. It is in relation to that that the Judge found the Secretary of State to be wrong and allowed the appeal.
10. However, the Refusal then refers to "Decision under Appendix FM" and also the income requirements under appendix FM.
11. However, the claimant made her application in March 2012. She made her application under paragraph 284. Appendix FM was inserted into the Immigration Rules by HC 194 and took effect from 9th July 2012. Page 1 of the Statement of Changes states:-
"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9th July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012”.
It goes on at page 2 to state:-
"Appendix FM applies to applications made on or after 9 July 2012 as set out in paragraph 91 of this Statement of Changes”.
12. It is clear therefore that Appendix FM and the requirements of the new Immigration Rules in relation to maintenance for married persons seeking leave to remain had no application in this case. The application was made in March 2012 and thus fell to be decided under the Rules as they were on 8th July 2012. The reference in the Refusal to Appendix FM is therefore incorrect. The only failure under paragraph 284 identified by the Secretary of State was the issue of the language certificate and that was dealt with in the claimant’s favour by the Judge. That part of the decision has not been challenged by the Secretary of State.
13. As the Secretary of State has not indicated that the claimant failed to meet any other aspect of paragraph 284 (as at 8th July 2012) then the claimant is entitled to assume, as is the Judge that she met the other requirements.
14. Accordingly, the Judge was correct to allow the appeal under the Rules and his determination discloses no error of law, material or otherwise.
15. Ms Horsley referred to the fact that the Secretary of State had also made a removal decision under section 47 that she wished to withdraw. That is not an option open to her before the Upper Tribunal. In any event, the section 47 decision was not dealt with by the First-tier Tribunal. The failure to do so has not been challenged by either side. The fact remains that the decision was unlawful but is now in any event relevant as the claimant’s substantive appeal has been allowed.
16. The appeal to the Upper Tribunal is dismissed.

Signed Date 12th June 2013

Upper Tribunal Judge Martin