Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00755/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 16 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ODO SUNDAY OFUTO
Respondent

Representation:
For the appellant: Mr L. Tarlow, Senior Home Office Presenting Officer
For the respondent: Mr C. Emezie on behalf of Dylan Conrad Kreolle Solicitors

DECISION AND REASONS

1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.

2. The appellant entered the UK on 14 September 2009 with entry clearance as a Tier 4 (General) Student migrant that was valid until 31 January 2013. He made an application for leave to remain as a spouse. The application was refused with a right of appeal on 28 March 2013. The appellant is recorded as having withdrawn the appeal on 24 January 2013 although the reason is unclear.

3. On 17 July 2013 he made a further application for leave to remain as a spouse. The application was refused without a right of appeal on 16 September 2013. The appellant filed an application for permission to bring judicial review proceedings on 20 November 2013. The course of the proceedings is unclear from the limited evidence currently before the Tribunal. A letter from the Home Office to the appellant dated 23 July 2015 stated that the Secretary of State had agreed to reconsider the case but it is unclear whether this was as a result of the judicial review proceedings or related to another application. The letter asked for further evidence relating to his wife's medical condition.

4. The operative decision for the purpose of this appeal is a subsequent decision to refuse leave to remain as a spouse dated 19 January 2016. The appellant asked for the appeal to be determined on the papers but served a bundle of evidence for consideration by the First-tier Tribunal.

5. First-tier Tribunal Judge Hosie ("the judge") allowed the appeal in a decision promulgated on 06 May 2016. The judge summarised the reasons for refusal [12]. She also took into account various pieces of evidence in the appellant's bundle, including medical evidence relating to his spouse, which referred to the appellant as her partner [15-16]. The evidence relating to his wife dated from 2013-2014.

6. The respondent sought to appeal the decision on the following grounds:
"Judge of the First-tier Tribunal Hosie finds that the A's appeal succeeds in relation to EX.1 "insurmountable obstacles". However, it seems Judge Hosie fails to notice that in the RFRL it is stated that:
We were notified by your wife, [LS], that your relationship with her no longer subsists and that she does not intend to live with you in the future. As such, you fail to meet E-LTRP 1.7 and E-LTRP 1.10 of the Immigration Rules, as defined below:
E-LTRP.1.7 The relationship between the applicant and their partner must be genuine and subsisting.
Judge Hosie completely fails to engage with this issue and therefore fails to resolve a conflict/make a finding on a material matter."
7. At the hearing Mr Tarlow said that he had considered the reasons for refusal letter and had gone through all the documents on his file but could not find any reference to the quote in the grounds. I had also noted that the decision dated 19 January 2016, which is the subject of this appeal, did not contain the quote relied upon. Mr Tarlow said that he could do no more than rely on the grounds of appeal, but appeared to accept that the Secretary of State's appeal must inevitably fail. If the quotation relied upon was not in fact in the decision letter before the judge she could hardly be criticised for failing to take it into account.

8. Mr Tarlow stated that the Home Office file was marked to say that the appellant's spouse had informed them on 12 March 2015 that she was no longer in a subsisting relationship with him. If that is the case it seems strange that it wasn't mentioned in the decision dated 19 January 2016. It is not clear from the patchy summary of his immigration history whether there was a previous refusal decision, which did take it into account. Whilst the evidence considered by the judge was somewhat dated and did not show at the date of the hearing that the appellant continued to be in a subsisting relationship with his wife, no challenge has been made to that issue in the grounds of appeal. As such, I conclude that the judge's findings were open to her to make on the evidence as it stood before the First-tier Tribunal and disclose no errors of law.

9. I conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law. The decision shall stand. It is a matter for the respondent to decide how to proceed if there is further evidence that was not placed before the First-tier Tribunal.

Decision

The First-tier Tribunal decision did not involve the making of an error on a point of law

Signed Date 16 November 2016
Upper Tribunal Judge Canavan