Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/02380/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ahmad Shibli Zahir
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal issued on 2 February 2016 allowing an appeal by the applicant against the decision of 5 January 2015 refusing his application for leave to remain on the basis of his family life in the UK. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

2. The appellant is a citizen of Bangladesh born on 7 April 1983. He entered the UK on 21 September 2006 as a student and was granted further extensions until 22 October 2010. He was granted further leave to remain as a Tier 1 (Postgraduate) until 9 December 2012. He then returned to the student category and was granted leave until 28 February 2015 but this leave was curtailed as from 11 October 2014. On 9 October 2014 the appellant applied for further leave on the basis of his marriage to a British citizen who was pregnant with their first child.

3. The application was refused as the appellant failed to meet the requirements of the Immigration Rules and the respondent was not satisfied that there were any exceptional circumstances which might warrant consideration under article 8. The First-tier Tribunal allowed his appeal against this decision was on the basis that he met the requirements of article 8.

4. The respondent was granted permission to appeal against this decision arguing that the judge erred in law by failing to give any or any adequate reasons for the findings that the appellant had a genuine and subsisting relationship with his child prior to that child's birth and that there were compelling circumstances warranting consideration outside the rules; to follow the guidance in Singh and Khalid [2015] EWCA Civ 74 and in Dube (ss117A-D) [2015] UKUT 90 and by making findings that were irrational.

5. When granting permission Judge A K Simpson said:

"It is clear that the appellant did not meet para EX.1 at the date of application, and it is arguable that despite the judge's finding at [20], he did not meet para EX.1 at the date of hearing as his child was still unborn at that date. Given that the child was yet to be born, there was no requirement on the respondent to consider s.55 and so it is also arguable that the judge misdirected [herself] as to the application of Appendix FM. Similar difficulties relate to the judge's findings at [25] that the appellant has family life in the UK with his child, as an unborn child has no legal status."

6. On 8 September 2016 the appellant through his representatives indicated that he wished to withdraw his appeal as he intended to make a fresh application. The Tribunal notified him that as it was the respondent who had been granted permission to appeal, the appropriate course was for the appeal to remain listed so that the judge seized of the appeal could make a decision on whether there was a material error of law in the decision. It was indicated that neither he nor his representatives need attend and on that basis it would be assumed there was no opposition by the appellant to the respondent's grounds of appeal in relation to the First-tier Tribunal's decision.

7. There has been no appearance today by or on behalf of the appellant. I am satisfied that the notice of hearing has been properly served evidenced by the fact that an application has been made on his behalf to withdraw the appeal. I am therefore satisfied that I should proceed to decide the appeal.

8. I am satisfied that the respondent's grounds as summarised in the grant of permission to appeal are made out and that the judge erred in law accordingly. No further representations have been received from the appellant to resist the appeal. I am satisfied that the error of law is material to the outcome and that the proper course is for the decision to be set aside and re-made. The appellant has applied to withdraw his appeal as he wishes to make a further application to the respondent. I give my consent to the withdrawal under the provisions of r.17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Decision:

9. The First-tier Tribunal erred in law such that the decision should be set aside. I record that the appellant has withdrawn his appeal against the original decision.

Signed H J E Latter Dated: 29 September 2016

Deputy Upper Tribunal Judge Latter