Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal: IA/07121/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 September 2016
On 29 September 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ARIF HUSSAIN
(Anonymity Direction not made)
Respondent

Representation:
For the Appellant: Ms J Isherwood (Home Office Presenting Officer)
For the Respondent: Mr S Khan, of counsel, instructed by AWS Solicitors

DETERMINATION AND REASONS
1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Pakistan born on 12 December 1977 as the appellant herein. The appellant was granted leave to enter the United Kingdom on 15 July 2005 until 2007 as a student and was granted further leave to remain until 30 November 2014. However an application made on 27 November 2014 for leave to remain on the basis of private life was refused on 5 February 2015.
2. The appellant appealed and his appeal came before a First-tier Judge on 9 October 2015. The appellant had by the time of the appeal hearing completed 10 years lawful residence and he relied on a notice under s.120 of the Nationality, Immigration and Asylum Act, 2002 (a one-stop warning having been issued by the Secretary of State) to the effect that he had now completed 10 years lawful residence in the United Kingdom and there was no reason why it would be undesirable for him to be granted indefinite leave to remain.
3. The judge records in paragraph 7 of his decision that the Presenting Officer asked that the case be remitted back to the Secretary of State for consideration by her of the appellant's case under Rule 276B along with any further documents the appellant chose to submit.
4. The judge however considered that he could only allow or dismiss the appeal rather than remit and he allowed the appeal.
5. The Secretary of State applied for permission to appeal on the basis that the judge had had a third option following Greenwood (No 2) [2015] UKUT 00629 (IAC), making a decision to the effect that the Secretary of State must or may make a fresh decision.
6. Permission to appeal was granted by First-tier Judge Davies on 17 August 2016 on the footing that the First-tier Judge had misunderstood his powers and he was able to remit the decision back to the Secretary of State without allowing the appeal outright.
7. Before me the parties agreed that the judge had erred in that the former appeal provisions applied in this case and that the power of remittal to the Secretary of State was still an option for the First-tier Judge as First-tier Judge Davies had recognised.
8. I was requested by both parties to remit the appeal to the Secretary of State for the Secretary of State to consider the application of the 10 year rule.
9. I find the judge made a material error of law, as did the Secretary of State in the grounds of appeal. The errors were understandable as the commencement orders bringing the changes to the appeal provisions of the 2002 Act into effect are not free of difficulty in interpretation and application - see Nkomo (Deportation: 2014 rights of appeal) [2016] UKUT 00285 (IAC).
10. However it is clear as the parties accepted that the appeal falls to be decided under the former appeal provisions. In the grounds issue was taken with the judge's record of what transpired at the hearing. The judge's minute is clear on the issue of the remittal request and in any event I am now requested to do what the judge understood he was to do - remit the matter to the Secretary of State.
The determination is flawed by a material error of law.
I re-make the decision.
The appeal is allowed to the extent that it is remitted to the Secretary of State to consider the appellant's case under the 10 year rule - Rule 276B.

Anonymity Direction
The First-tier Judge made no and I make none.

Fee Award
The First-tier Judge made a fee award of any fee paid or payable and there is no reason to disturb that decision

Signed
G Warr, Judge of the Upper Tribunal

28 September 2016