Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02229/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th December 2016
On 13th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

the secretary of state for the HOME DEPARTMENT
Appellant

and

mr MALIK UMWER FAROOQ
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, Counsel instructed by Mayfair Solicitors

DECISION AND REASONS
1. The Respondent (who I shall refer to as the claimant) is a citizen of Pakistan who made an application for leave to remain here as a Tier 4 (General) Student Migrant under the points-based system. The application was refused by the Secretary of State in a refusal decision of 19th December 2014.
2. The claimant appealed the refusal of that decision to First-tier Tribunal Judge Khan who noted that there was also a decision of 7th November 2014 to remove him.
3. The judge concluded that the second decision, namely that of 19th December 2014 must supersede the earlier decision and that the decision of 7th November 2014 was therefore not in accordance with the law. The judge went on to find that the Secretary of State should have granted the claimant a period of 60 days to seek further sponsorship as the claimant was denied the opportunity to continue with his studies here at a different educational institution. The appeal was allowed on the basis that the decision was not in accordance with the law.
4. The grounds of application on behalf of the Secretary of State were quite brief stating that it was not clear on what legal basis the decision of 19th December 2014 could be said to have superseded or to have withdrawn the one of 7th November 2014.
5. In refusing permission to appeal, First-tier Tribunal Judge Hollingworth pointed out that it was clear to the judge that the decision of 19th December 2014 superseded the earlier decision. On renewal of the appeal to the Upper Tribunal, Upper Tribunal Judge Kekic found that it was arguable the judge had failed to adequately explain why he concluded that the second decision superseded the first.
6. Before me, for the Secretary of State Mr Duffy maintained that the second decision was a nullity. It was made in ignorance of the first decision and therefore the judge did not have jurisdiction to hear it. It was accepted that this was not the way the case had been presented to the First-tier Tribunal Judge at the hearing. He added that it would have been expected to have been mentioned in the second decision that the first decision was withdrawn - which had not been stated.
7. For the claimant Mr Sharma relied on what was set out in his written submissions. There were two decisions. There was a decision dated 19th December 2014 and there was also a decision to remove him pursuant to Section 47 under the 2006 Act - the 7th November decision.
8. It was submitted that the decision of 19th December 2014 superseded the earlier decision and this had been accepted by the Home Office Presenting Officer at the hearing. With reference to his oral submissions Mr Sharma pointed out that the decision made on 19th December 2014 was an appealable decision. The appeal had developed since the earlier decision to remove him. We were now being told that the second decision was a mistake, but that was not a matter that was canvassed before the First-tier Tribunal Judge, nor had permission been given to argue such a point. As per the written submissions, the 19th December 2014 decision must implicitly have been taken to withdraw the decision of 7th November.
9. In terms of the actual decision by the judge, reference was made to SSHD v Khan [2016] EWCA Civ 137 and Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC). There was a policy to notify those in the position of Mr Khan and to suspend consideration of their applications for 60 days to enable them to remedy problems. That policy had not been applied in this case and it was accepted by the Presenting Officer that it should have been.
10. I reserved my decision.
Conclusions
11. On the face of it, it might seem rather puzzling why the Secretary of State made two decisions in this case. It was submitted by Counsel for the claimant that the decision of 19th December 2014 must implicitly have been taken to withdraw the decision of 7th November 2014. While Mr Duffy made the point that if that had really been so, he would have expected the second decision to have made that clear this was not the position taken by the Home Office Presenting Officer at the time of the hearing before the First- tier tribunal judge. Indeed, in paragraph 13 of the judge's decision it was noted that Mr Grennan, the Home Office Presenting Officer "accepted the points raised by Counsel (for the claimant) as "entirely valid". Given that concession it is hardly surprising the judge proceeded in the way he did. Mr Grennan seems to have accepted that the 60 day policy of the Secretary of State had not been applied in this case. In those circumstances, and with the agreement of parties, the judge simply found that the Respondent's decision was not in accordance with the law.
12. We are now told, for the first time, that the second decision of 19th December 2014 was made in error and it was always intended to remove the Appellant. As Mr Sharma pointed out, the Secretary of State does not have permission to appeal on those grounds and indeed Mr Duffy did not seek permission to do so, presumably because it came far too late in the day to try and change the basis of the appeal. The second decision of the Secretary of State gave the claimant a right of appeal which was successfully exercised and it is difficult to forsee circumstances where that chain of events can or should be undone.
13. While I am grateful to Mr Duffy for clarifying the position which has arisen, the position taken before the judge was that the Home Office Presenting Officer agreed with the submission made by Counsel and it followed that the judge could do no more than conclude that the Secretary of State should have granted the claimant a period of 60 days to seek further sponsorship. That being so, there is no error in the judge's decision, which must stand.
Notice of Decision
14. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
15. I do not set aside the decision.
16. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald

TO THE SECRETARY OF STATE
FEE AWARD
I have dismissed the appeal of the Secretary of State and therefore the fee award made by the First -tier Tribunal judge shall stand.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald