Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/03308/2013

THE IMMIGRATION ACTS

Heard at Field House
Judgment given orally
On 10 September 2013
On 23 September 2013

?????????????

Before

UPPER TRIBUNAL JUDGE COKER

Between

Ademola Jospeh Adewunmi

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No representation
For the Respondent: Ms Z Kiss, Home Office Presenting Officer

DETERMINATION AND REASONS

1. Mr Adewunmi was in the UK as a Tier 1 (Post-Study Work) Migrant. He had been granted leave to remain in that category on 10 September 2010 until 10 September 2012. On 8 September 2012 he applied for leave to remain as a Tier 1 (General) Migrant. On 6 April 2011 the Immigration Rules were amended such that on the date of application by Mr Adewunmi for leave to remain as a Tier 1 (General) Migrant his then current leave to remain as a post-study work migrant did not enable a successful application. The criteria for a successful application is set out in paragraph 245CA of the Immigration Rules.

2. Mr Adewunmi's grounds of appeal were that the decision was unfair because he had been granted leave to remain on the basis that he would have been able to apply successfully in the future. The respondent can change the Rules as she wishes. There are no transitional provisions for these particular Rule changes which were HC 1883.

3. In the case of MO (Nigeria) [2008] EWCA Civ 308 the Court of Appeal said that in general there is nothing in Immigration Rules to suggest that a person making an application acquired a right to have that application determined in accordance with the provisions in force at the time of the application. There is no discretion in paragraph 245CA of the Immigration Rules and although I have great sympathy with Mr Adewunmi the appeal fails in terms of the Immigration Rules. The First-tier Tribunal Judge took a decision that the decision of the Secretary of State to refuse the application under the Immigration Rules was correct and in the light of the Rules that is so.

4. So far as human rights is concerned, the First-tier Tribunal decision set out the correct test, burden and standard of proof and in paragraphs 11 to 14 of the decision gave her reasons for finding that the decision was proportionate. Again, much as I have sympathy for Mr Adewunmi who has studied in the UK, acquired skilled qualifications and took a decision in 2010 on the basis of the information that was available to him at that time, the First-tier Tribunal determination was a decision taken by the judge within the range of decisions open to her. It was neither perverse nor irrational and although another judge may have come to a different conclusion, there is no error of law in her decision such that the decision of the First-tier Tribunal should be set aside to be re-made.

5. One matter however that the First-tier Tribunal failed to consider correctly was the decision of the Secretary of State to remove the appellant in accordance with Section 47. As was accepted by Ms Kiss before me, this decision was unlawful. I therefore quash the decision of the First-tier Tribunal that the whole of the decision of the Secretary of State was in accordance with the law and the Immigration Rules. The decision by the Secretary of State to remove the appellant was clearly unlawful and the appeal succeeds on that basis.

Signed on 20th September 2013

Upper Tribunal Judge Coker