Tribunal decisions

The decision

IAC-fH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/06882/2015
IA/06944/2015
IA/06952/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 August 2016
On 6 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

Vijayaraghavan [P]
ANURADHA [B]
[S N]
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Miss A Fijiwala, Home Office Presenting Officer
For the Respondent: Miss D Qureshi, Counsel, instructed by Legend Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal which allowed the appeal of Mr [P] ('the first claimant') and his two dependants ('the second and third claimants').
2. The claimants are all citizens of India. The first claimant was born on 11 October 1977, his wife, the second claimant, was born on 15 September 1980 and his son, the third claimant, was born on 27 September 2008. On 21 January 2015 a decision was made to curtail the first claimant's leave to remain in the United Kingdom. However, the decision to curtail the claimant's leave did not give rise to a right to the appeal. The first claimant was also subject to a decision made on 17 February 2015 which was a refusal of leave to enter the United Kingdom. The decision to refuse leave to enter the United Kingdom does attract a right of appeal.
The Hearing before the First-tier Tribunal
3. The First-tier Tribunal allowed the claimants' appeals, considering solely the decision made on 21 January 2015 to curtail the first claimant's leave to remain in the United Kingdom. The First-tier Tribunal also considered issues raised by the Secretary of State in respect of the first claimant's TOEIC qualification. The First-tier Tribunal allowed the appeals to the extent that the curtailment letter ought to be properly served upon the claimants and for the first claimant to be given 60 days to apply for a new college/sponsor. It was also decided by the First-tier Tribunal that the respondent should reconsider the refusal grounds in relation to the first claimant's TOEIC qualification in light of the interview that was said to have occurred with the claimant in or around May 2015.
The Appeal to the Upper Tribunal
4. The Secretary of State sought permission to appeal against the First-tier Tribunal's decision to the Upper Tribunal. The grounds of appeal set out that the First-tier Tribunal had misdirected itself and that this amounted to a material error of law. It is asserted that the first claimant's appeal was against the refusal of leave to enter decision made on 17 February 2015 and not an appeal against the decision to curtail the claimant's leave. The decision to curtail leave does not attract a right of appeal but the decision to refuse leave to enter does. It is further asserted that the Tribunal failed to take into account or resolve conflicts of fact or opinion on a material matter. The respondent drew attention to the fact that the First-tier Tribunal set out that the Secretary of State was not represented at the hearing whereas in fact the Secretary of State was represented by a Presenting Officer. The record of the Presenting Officer's attendance at the hearing has been provided.

The Hearing before the Upper Tribunal
5. At the commencement of the hearing before the Upper Tribunal Miss Qureshi indicated that the claimants accepted that there had been an error of law in the First-tier Tribunal's decision.
Discussion
6. It is clear that the First-tier Tribunal erred in law by considering that the appeal was against the decision to curtail the first claimant's leave to remain in the UK made on 21 January 2015. As submitted by the Home Office this decision does not attract a right of appeal. The only decision that could have been appealed against was the decision of February 2015 which was a refusal of leave to enter the United Kingdom. This was a clear error of law on the part of the Tribunal as it had no jurisdiction to entertain an appeal against the decision to curtail leave to remain in the UK.
7. Further, the Tribunal had no power to remit the matter to the Secretary of State. Pursuant to Section 86 of the 2002 Act the judge either had to dismiss the appeals, allow them outright or allow them to the limited extent that the decisions were not in accordance with the law.
8. This is a case in which there were no findings of fact in relation to the matters under appeal and therefore this matter must be remitted to the First-tier Tribunal for a de-novo hearing before a judge other than Judge Lucas. It was not possible to fix a hearing date at the hearing before me. Therefore, the matter is remitted to be heard on the next available date at Taylor House hearing centre.
Notice of Decision
9. The First-tier Tribunal's decision contained a material error of law and is set aside. The matter is remitted to the First-tier Tribunal to be heard on the next available date at Taylor house before any judge other than Judge Lucas.
No anonymity direction is made.

Signed P M Ramshaw Date 3 September 2016

Deputy Upper Tribunal Judge Ramshaw