Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06515/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 17 October 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TANVIR KHAN OMAR
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Respondent: Mr. A. Aslam, instructed by Malik Law Chambers Solicitors

DECISION AND REASONS

History of Appeal

1. The Respondent, who was born on 8 April 1989, is a national of Bangladesh. He entered the United Kingdom as a Tier 4 (General) Migrant on 2 September 2009 with leave to remain until 31 January 2013. His leave was subsequently extended in this same capacity until 24 June 2014.

2. He married a British national on 2 September 2013 and applied for leave to remain as her spouse on 15 May 2014. His application was refused on 30 January 2015 on the basis that he had used deception to obtain leave to remain in the past. In particular, it was asserted that the test results for an English test organised by ETS on 12 December 2012 could not be authenticated. As a consequence, he could not meet all of the suitability requirements contained in Appendix FM to the Immigration Rules and in particular, S.LTR.2.2((a).

3. He appealed against this decision on 12 February 2015 and his appeal was allowed by First-tier Tribunal Judge Eldridge in a decision promulgated on 28 April 2016 on the basis that the decision taken by the Appellant was not in accordance with the law. The Appellant applied for permission to appeal to the Upper Tribunal on 12 May 2016 and First-tier Tribunal Judge Grant-Hutchinson granted her permission to appeal on 14 September 2016.

Error of Law Hearing

4. The preliminary point was raised in relation to the reason for the appeal before the First-tier Tribunal being initially adjourned on 5 January 2016. The notice of proceedings on my file, completed by First-tier Tribunal Judge Keane stated that the Respondent had requested an adjournment as the Appellant had served witness statements on him on the morning of the hearing and that this was the reason for the adjournment. It was accepted that these witness statements were the generic ones provided by the Appellant in relation to the methodology used by ETS.

5. I heard oral submissions by Ms Brocklesby-Weller, on behalf of the Appellant. She took me through the relevant provisions of The Immigration Act 2014 (Commencement NO. 3, Transitional and Saving Provisions) Order 2014 ("the Commencement Order"). She also submitted that the First-tier Tribunal Judge had also failed to reach any decision on the issues of deception and suitability. She noted that this was because the First-tier Tribunal Judge took a point about the legality of the decision to remove the Respondent which had not been raised by or with the parties at the appeal hearing.

6. Ms Brocklesby-Weller also submitted that, if the First-tier Tribunal Judge decided that an issue arose about the lawfulness of the decision to remove the Respondent from the United Kingdom, the hearing should have been reconvened and the parties invited to address him on this issue.

7. In his oral submissions counsel for the Respondent submitted that the First-tier Tribunal Judge should have considered the substance of the appeal and asserted that there was insufficient evidence to establish that the Respondent had used deception. He also agreed with Ms Brocklesby-Weller that procedural unfairness had occurred in the manner in which the First-tier Tribunal Judge introduced a new argument relating to the legality of the decision to remove the Respondent.

Decision

8. I turn first to the substantive decision by First-tier Tribunal Judge Eldridge that there was no power in law to remove the Respondent from the United Kingdom as a person who was "unlawfully in the United Kingdom".

9. For the purposes article 1(1) of the Commencement Order, section 10 of the Immigration and Asylum Act 1999 is a "saved provision". Article 9 of the Commencement Order then states that "notwithstanding the commencement of the relevant provisions, the saved provisions continue to have effect, and the relevant provisions do not have effect, other than so far as they relate to the persons set out respectively in articles 10 and 11, unless article 11(2) or (3) applies. Article 10 refers to foreign national criminals and their family members and article 11 refers to Tier 4 migrants and their dependents.

10. As a consequence, at the date of decision the Appellant did have the power to decide to remove the Respondent under section 10(1)(b) of the Immigration and Asylum Act 1999 on the basis that he had used deception in seeking (whether successfully or not) leave to remain. This was the basis on which the IS.151A was served on the Respondent. It was not the case that the removal had to be based on the amended version of section 10 of the Immigration and Asylum Act 1999, which was not in force for the type of application made by the Respondent. In his oral submissions counsel for the Respondent did not disagree with this analysis.

11. I also note that the First-tier Tribunal Judge concluded that the decision on removal was not in accordance with the law without giving the parties the opportunity to address him on this point. This amounted to a procedural error which deprived both parties of the ability of putting the legal arguments which flowed from the approach being adopted by the Judge.

12. For both of these reasons I find that the decision by First-tier Tribunal Judge Eldridge did include material errors of law.

Decision

13. The Appellant's appeal is allowed.

14. The case remitted to be heard at Taylor House by a First-tier Tribunal Judge other than First-tier Tribunal Judge Eldridge on a de novo basis

Date: 10 October 2016

Nadine Finch
Upper Tribunal Judge Finch