Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/08202/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision and Reasons Promulgated
On 14th February 2017
On 8th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

DENZIL RENARDO GRANT
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr J Holt (Counsel, instructed by Paragon Law)
For the Respondent: Mr M Diwncyz (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant's application for further leave to remain (LTR) was refused. The appeal was heard by First-tier Tribunal Judge Asjad at Birmingham on the 14th of March 2016 and dismissed in a decision promulgated on the 27th of April 2016. The Appellant was granted permission to appeal to the Upper Tribunal leading to the hearing in Birmingham following which the decision was reserved.

2. The Appellant is a national of Jamaica and was born on the 19th of December 1994. His immigration and offending history is set out in the papers and the decision. Discretionary leave had been granted to the 29th of November 2014 and his application for further LTR was made shortly before that. The Refusal Letter of the 11th of February 2015 sets out the reasons for rejecting his application. The Judge allowed the Appellant's appeal against the refusal under paragraph 322(5) and went on to consider the position under the suitability requirements of Appendix FM dismissing his appeal for the reasons given in paragraphs 23 and 24 of the decision, i.e. the Appellant had deliberately failed to disclose his convictions and they prevented the Appellant from meeting the suitability requirements.

3. The basis of the appeal is 2 fold. The first is that as the Appellant's discretionary leave was first granted before the 9th of July 2012 the transitional provisions that apply mandate that unless there has been a change of circumstances LTR should be granted and only very serious criminal offending such as war crimes or the Appellant constituting a danger to the community or security of the UK would justify revocation or a refusal to renew. The suitability requirements considered by the Judge were to a much lower standard that did not apply.

4. The second ground is that the Judge failed to consider the wider aspect of article 8 and the interests of the other family members who would be affected by the decision who the Judge had found would be upset by the Appellant's removal to Jamaica.

5. The submissions are set out in full in the Record of Proceedings. In addition to the written grounds it was submitted that if the Appellant's turning 18 was a change of circumstances then that had not been considered by the First-tier Tribunal as the question of his dependency on his mother had not yet been considered. The Home Office maintained that the Appellant is an adult and all his offending was committed as an adult. More than the usual ties would be needed to establish dependency on his mother. I raised whether any error was material, the Appellant's counsel submitted that there had been no assessment of the question whether there had been a change of circumstances or of his level of dependency.

6. There is no challenge to the findings made by the Judge about the Appellant's behaviour including his role in filling in the form (and the inconsistencies in the evidence relating to that) and the facts of his convictions speak for themselves and include his stealing from his mother. If the Transitional Provisions do apply then, subject to there being a change of circumstances, it would be right that his offending would not meet the high threshold referred to in them.

7. It does not appear from the Record of Proceedings that the basis that is now argued was raised before the First-tier Tribunal Judge in the course of the proceedings and did not form any part of the Grounds of Appeal in the First-tier Tribunal. That appears to have stemmed from the position adopted in the Refusal Letter which also appears to have proceeded on an erroneous basis. In the circumstances the Judge should not be criticised for considering the case on the basis that was put before her when relevant but arcane provisions were not brought to her attention.

8. With some regret, given the careful consideration that the Judge gave to the issues that were raised I am constrained to find that the decision of the First-tier Tribunal did contain an error of law and that it cannot stand. I would observe that the Judge’s summary of the evidence in the proceedings before her remain relevant, there is no dispute with the record of evidence set out in paragraphs 9 to 16 and these can properly form the basis for any findings that are made in the next hearing.

9. The second ground has less merit because if the Appellant did not meet the Immigration Rules then compelling circumstances would be needed to justify a grant outside the rules and evidence of such compelling circumstances was clearly in short supply but nonetheless the findings cannot stand.

10. In the circumstances the decision of First-tier Tribunal Judge Asjad is set aside and the case is remitted to the First-tier Tribunal for re-hearing. The findings at paragraph 23 and 24 of the decision are preserved although their relevance and bearing on the outcome are a matter for the First-tier Tribunal Judge who hears the remitted appeal.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision and remit the appeal to the First-tier Tribunal for re-hearing, not before Judge Asjad.

Anonymity

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award

In remitting the appeal I make no fee award which remains a matter for the First-tier Tribunal on re-hearing.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 3rd March 2017