Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA004772015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 26 April 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

Muhammed Abdul Kuduse

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr T Shah of Taj Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Bangladesh who was born on 29 June 1988. It is accepted that he entered the United Kingdom on 1 April 2001 (when he was 12 years of age) using a fraudulently obtained passport. On 5 August 2011, he applied for indefinite leave to remain. That application was refused on 24 October 2011 but he was granted discretionary leave outside the Immigration Rules (HC 395 as amended) until 23 October 2014.
2. On 1 October 2014, the appellant applied for an extension of his discretionary leave. In that application, the appellant set out his immigration history and his circumstances including his on-going business activities.
3. On 12 December 2014, the Secretary of State refused his application for further leave and made a decision to remove him by way of directions to Bangladesh under s.47 of the Immigration, Asylum and Nationality Act 2006. The basis of that refusal, outside the Immigration Rules, was that the Secretary of State was not satisfied that there were "compelling circumstances".
4. The appellant appealed to the First-tier Tribunal. In a determination dated 5 August 2014, Judge Britton dismissed the appellant's appeal on the basis that the appellant had failed to establish a breach of Art 8 of the ECHR.
5. The appellant sought permission to appeal to the Upper Tribunal principally on the basis that the Secretary of State (and the judge on appeal) had failed to consider the application of the respondent's policy in respect of extensions of discretionary leave which, at chapter 10 under the heading "Transitional Arrangements", states that the policy applied to applications to extend discretionary leave which had been granted before 9 July 2012.
6. On 30 November 2015, the First-tier Tribunal (Judge E B Grant) granted the appellant permission to appeal on the basis that the judge had arguably erred in law by failing to consider whether the respondent's decision was not in accordance with the law because she had failed to apply her discretionary leave policy as applicable by virtue of the "Transitional Arrangements" provisions in Chapter 10.
7. On 7th December 2015, the Secretary of State filed a Rule 24 response in which she, in effect, accepted that the discretionary leave policy was applicable in principle to the appellant but sought to argue that the outcome could be no different as the appellant fell within the "criminality and exclusion" section as a result of his immigration history.
8. Thus, the appeal came before me.
9. I briefly heard submissions from both Mr Shah, who represented the appellant and Mr Richards who represented the respondent. Mr Shah maintained the grounds of appeal upon which permission had been granted.
10. Mr Richards accepted that the judge's decision could not stand as the Secretary of State had failed to consider the application of the discretionary leave policy which applied to the appellant as he had been granted discretionary leave before 9 July 2012. In turn, the judge had failed to consider whether the respondent's decision was not in accordance with the law. Mr Richards did not seek to uphold the judge's decision on the basis that any error was immaterial because the "criminality and exclusion" section would apply to the appellant. He acknowledged that that had not been considered by the Secretary of State and he submitted that the appropriate course was for the Upper Tribunal to set aside the First-tier Tribunal's decision and substitute a decision that the Secretary of State's decision to refuse the appellant's further leave made on 9 December 2014 was not in accordance with the law.
11. Having taken instructions, Mr Shah was content that I should determine the appeal on that basis.
Decision
12. For the reasons, conceded by the Secretary of State in this appeal, the decision of the First-tier Tribunal to dismiss the appellant's appeal involved the making of an error of law. That decision is set aside.
13. I remake the decision allowing the appellant's appeal on the basis that the Secretary of State's decision was not in accordance with the law.
14. The effect of that decision is that the appellant's application for further leave made on 1 October 2014 remains outstanding before the Secretary of State awaiting a lawful decision applying the relevant discretionary leave policy. Although there has been no excessive delay since the application was made in October 2014, given the period of time that has passed I simply express the hope that the Secretary of State will be able to make a new decision on that application as soon as possible.

Signed

A Grubb
Judge of the Upper Tribunal
Date 10th June 2016