Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04714/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 22 February 2016
On 7 April 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Adeyemisi Ololade Adesida

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Nasim, Counsel instructed by Stephens Happyman & Co Solicitor
For the Respondent: Ms R Pettersen, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria, born on 11 August 1976.
2. On 25 January 2013 she made an application for further leave to remain. That application was refused in a decision dated 13 January 2015. At the same time a decision was made to remove the appellant pursuant to Section 10 of the Immigration and Asylum Act 1999.
3. The appellant appealed against those decisions and her appeal was heard by First-tier Tribunal Judge N M K Lawrence on 23 July 2015, whereby the appeal was dismissed.
4. The respondent's decision considered the application for leave to remain with reference to Article 8 of the ECHR, in terms of the Article 8 Rules relating to family and private life. Consideration was also given to the issue of "exceptional circumstances" and whether a grant of leave otherwise than under the Rules was merited under Article 8. Articles 3 and 8 were also considered in terms of the appellant's health.
5. The First-tier Judge ("FtJ") concluded that the appellant was not able to meet the requirements of the Article 8 Rules and dismissed the appeal on that basis and with reference to Article 8 proper.
6. The grounds of appeal before the Upper Tribunal contend that there were various errors in the FtJ's decision in relation to the appellant's immigration history, in relation to the nature of the respondent's decision and otherwise in the appeal before the First-tier Tribunal ("FtT"). Other issues are raised in the grounds in terms of the best interests of the appellant's two children.
7. In the respondent's 'rule 24' response, it is stated that the respondent's preliminary view is that it is conceded that the respondent's decision does not substantively consider the appellant's Tier 4 application dated 25 January 2013, as it should have done. On that basis, it is suggested that the appeal be allowed to the limited extend that the respondent's decision of 13 January 2015 is not in accordance with the law.
8. Before me it was agreed on behalf of the respondent that the FtJ had erred in law in terms of the appellant's immigration history which it was accepted is not accurately set out in the respondent's decision. It was also accepted that the FtJ did not in fact deal with a matter that is said to go to the suitability requirements of the Rules, namely an allegation of deception in relation to an English language test taken by the appellant on 18 September 2012, the English language test having been used by the appellant to seek leave to remain.
9. There was also the underlying error in the respondent's decision which was to have failed to consider the appellant's Tier 4 application, instead dealing with the application on the basis of Article 8 of the ECHR.
10. In the light of the agreement between the parties before me, it is not necessary to provide much elaboration of those issues. It is accepted on behalf of the respondent that there are errors in the decision letter setting out the appellant's immigration history. In that sense, the FtJ could not be criticised for relying on the information set out in the decision letter, although having said that, it is contended on behalf of the appellant that her immigration history is in fact set out in her witness statement and other documents in the bundle that were before the FtT. Indeed, it is the case that in her witness statement the appellant took issue with the respondent's summary of her immigration history. The FtJ has not dealt with that issue.
11. At [19] the FtJ said that the appellant had to satisfy the 'suitability' requirements of the Rules, referring to the allegation that she had used deception in order to obtain an English language test. However, there is in fact no finding by the FtJ on that issue.
12. The respondent accepts that the appellant actually made an application for leave to remain as a Tier 4 Student, and that that application was not dealt with in the respondent's decision dated 13 January 2015.
13. In the circumstances, having regard to the concession on behalf of the respondent, and the other matters to which I have referred, I am satisfied that the FtJ erred in law such as to require the decision to be set aside. Again, in the light of the respondent's concession, I re-make the decision and allow the appeal to the limited extent that the respondent's decision is not in accordance with the law for failure to determine the Tier 4 application.
14. Accordingly, there remains outstanding before the Secretary of State a lawful decision to be made on the application with reference to Tier 4.
15. Having set aside the FtJ's decision, again the parties agreed that no findings of fact should be preserved in the respondent's further consideration of the appellant's outstanding application.
Decision
16. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside. I re-make the decision, allowing the appeal to the limited extent that there remains outstanding before the respondent an application for leave to remain which requires lawful consideration by the respondent.

Upper Tribunal Judge Kopieczek 18/03/16