IA/03929/2015

• Status of case: Unreported
• Hearing date: 28 Jun 2016
• Promulgation date: 11 Aug 2016
• Publication date: 18 Dec 2017
• Last updated on: 18 Dec 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA 03929 2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 June 2016
On 11 August 2016



Before

UPPER TRIBUNAL JUDGE PERKINS


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

REBU THAPA
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: Mr Parliament Maqsood, Counsel, instructed by Pride Solicitors
DECISION AND REASONS
1. I see no need for and do not make any order restricting reporting about this case.
2. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of the present respondent against the decision of the Secretary of State to refuse him leave to remain in the United Kingdom. The result of the First-tier Tribunal's decision is that the respondent became entitled to indefinite leave to remain. The Secretary of State's grounds, which happen to be settled by Mr Whitwell who appeared for the Secretary of State today, insist that the judge's approach was completely wrong and the judge could not lawfully have made the decision that he did because it was premised on the respondent having a form of leave that he did not have.
3. That said, Mr Whitwell made it perfectly clear before me, as was hinted in the grounds, that the respondent is entitled to leave but not indefinite leave at this stage because his circumstances satisfy the requirements of paragraph 319C(b)(iv) of HC 395. If I were to set aside the decision of the First-tier Tribunal and replace it with a decision allowing the appeal but not with the result that the respondent has indefinite leave to remain but that the respondent has limited leave to remain in accordance with 319C(b)(iv) the Secretary of State could not complain about the decision.
4. Mr Maqsood has had an opportunity for considering this suggestion as well as producing a skeleton argument for me which I have read. He cannot resist Mr Whitwell's submission.
5. It follows therefore that with the consent of the parties I set aside the decision of the First-tier Tribunal and I substitute a decision allowing the appeal of the respondent against the Secretary of State's decision because the respondent satisfies the requirements of 391C(b)(iv) and is therefore entitled to leave to remain.
6. Whether or not the respondent becomes entitled to indefinite leave to remain is a matter for a further application which may not may not be made in due course.
Notice of Decision
7. The Secretary of State's appeal is allowed the limited extent indicate above.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 August 2016