Tribunal decisions

The decision

IAC-AH-co-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07109/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12th November 2015
On 21st December 2015

Before

upper tribunal JUDGE RENTON

Between

RUNYARO MADGE NTABENI
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mavaza of Walters Solicitors
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Zimbabwe born on 23rd July 1966. She first arrived in the UK on 14th September 2000 when she was given leave to enter as a student until 31st October 2001. Thereafter the Appellant was granted successive periods of leave to remain as a student, a nurse (supervised practice), a work permit holder, and a Tier 2 (General) Migrant until 5th August 2012. On 12th July 2012 the Appellant applied for indefinite leave to remain as a Tier 2 (General) Migrant. That application was refused on 25th February 2013 for the reasons given in a Notice of Decision of that date. At the same time the Respondent decided to remove the Appellant under the provisions of Section 47 Immigration, Asylum and Nationality Act 2006. The Appellant appealed, and her appeal was heard by Judge of the First-tier Tribunal Stokes sitting at Taylor House on 27th August 2014. He decided to dismiss the appeal under the Immigration Rules and also on human rights grounds for the reasons given in his Decision dated 8th October 2014. The Appellant sought leave to appeal that decision, and on 2nd December 2014 such permission was granted but only as regards the Section 47 removal decision.
Error of Law
2. I must first decide if the Judge made an error of law in respect of his Section 47 removal decision so that it should be set aside. At the hearing, I heard brief submissions from Mr Whitwell and Dr Mavaza. Mr Whitwell conceded that the Section 47 removal decision had been made at the same time as the decision to refuse the application for leave to remain and was therefore made not in accordance with the law. The Judge should have made a finding accordingly, and his decision to dismiss the appeal against the Section 47 removal decision was therefore made in error of law and should be set aside. In Mr Whitwell's submission, now that the provisions of the Crime and Courts Act 2013 had come into force I should remake the decision of the Judge by referring the matter to the Secretary of State for a further removal decision to be made.
3. I agreed with the submission of Mr Whitwell for reasons I need not explain as the issue was conceded by him.
Decision
There was an error of law in the decision of the Judge relating to the Section 47 removal decision. I set that decision aside. I remake that decision by deciding that the decision of the Respondent was not in accordance with the law and therefore to that extent I allow the appeal of the Appellant and direct that the Section 47 removal decision be referred again to the Secretary of State for another decision.
Anonymity
The First-tier Tribunal did not make an order for anonymity and I find no reason to do so.

Signed Dated

Upper Tribunal Judge Renton

TO THE RESPONDENT
FEE AWARD
Although I have allowed the original appeal of the Appellant to a limited extent, I make no fee award as the Appellant's substantive appeal was unsuccessful.

Signed Dated

Upper Tribunal Judge Renton