IA/03594/2013 & IA/03597/2013

• Status of case: Unreported
• Promulgation date: 27 Sep 2013
• Publication date: 8 Nov 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/03594/2013
IA/03597/2013


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 26th September 2013
On 27th September 2013


Before

UPPER TRIBUNAL JUDGE MARTIN

Between

Mr almamon mostafa
mrs akter rina
(Anonymity Order not Made)
Claimant
and


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: The Appellants in person
For the Respondent: Mr E Tufan (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Secretary of State against a determination of the First-tier Tribunal (Judge Kimnell) promulgated on 11th June 2013 by which he allowed the Appellants' appeals against the Secretary of State's decision to refuse them leave to remain as a Tier 1 (Post Study Work) Migrant and his dependant spouse.
2. The Secretary of State refused the application because at the date of application the first Appellant did not have his qualification. It was received between the date of application and the date of decision and the First-tier Tribunal allowed the appeal on the basis of Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC).
3. The Secretary of State sought permission to appeal on the basis that the Court of Appeal has decided in Raju & Ors [2013] EWCA Civ 754 that Khatel was wrongly decided and in order to comply with the Rules the documents had to be submitted at the date of application. This Appellant could not comply with that as he had not then received his qualification.
4. On the basis of Raju the First-tier Tribunal made an error of law and as that was the sole basis for allowing the appeal the determination must be set aside in its entirety and the appeal redecided.
5. The Appellant who is unrepresented had until yesterday been represented. Those representatives had applied for an adjournment on the basis that Raju was the subject of an appeal to the Supreme Court. That adjournment was refused as this Tribunal is bound by the law as it is now, not as it may be in the future and is obliged to follow Court of Appeal decisions.
6. The Appellant requested an adjournment which I also refused. Whether or not the Appellant is represented cannot alter the fact that he cannot win this appeal and so an adjournment would be pointless.
7. As the first Appellant did not have the requisite qualification when he applied for leave to remain he cannot meet the requirements of the Immigration Rules for leave to remain as a Tier 1 (Post Study Work) Migrant.
8. With regard to Article 8 there is no basis upon which to find the Secretary of State's decision a disproportionate breach of the Appellants' right to a private and family life. They have been in the UK since 2006 but they will be returning to the country of their nationality, heritage, culture and language and where they lived, in the first Appellant's case for 32 years and in the second for 25 years prior to coming to the UK. They will return as a family unit.
9. The First-tier Tribunal having made an error of law and the determination being set aside I redecide the appeal. The Secretary of State's appeal to the Upper Tribunal is allowed such that the Appellants' appeals against the Secretary of State's decision are dismissed.

Signed Date 26th September 2013



Upper Tribunal Judge Martin