Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08622/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th March 2017
On 25th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr Kuljinder Singh
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Mr J Butterworth, Counsel, instructed by Charles Simmons Solicitors

DECISION AND REASONS
1. The Appellant in this case is the Secretary of State who appeals the decision of Judge Porter promulgated on 8th August 2016 when she allowed the appeal of the Respondent (hereinafter referred to as the claimant) to a limited extent in that the appeal was remitted back to the Secretary of State to consider the application afresh in the light of her findings.
2. Grounds of application were lodged by the Secretary of State principally on the basis that there was nothing in the judge’s findings to show that the substantive reasoning given by the Secretary of State in refusing the application was incorrect. What the judge had done was to decide a preliminary point only and having found that the appeal should proceed the judge should have considered the merits of the case. Permission to appeal was granted on the basis that the judge was required to consider and make findings as to the merits of the application and she erred in law by purporting to remit it to the Secretary of State.
3. Before me Mr Tarlow relied on his grounds and submitted that the judge had fallen into error by not considering the merits of the case and as a result the decision should be sent back to her to complete her task.
4. Mr Butterworth referred the Tribunal to a preliminary decision of Judge Herlihy who had given directions on the appeal and had stated that the issue on the validity of the appeal should be resolved by the judge who heard the case. In that sense Judge Porter had done what she was told to do and therefore her decision should not be considered unlawful.
5. I reserved my decision.
Conclusions
6. While the decision of Judge Herlihy appears to be only available on Mr Butterworth’s laptop he did not dispute the proposition that the Secretary of State had already made a decision in this case and there was nothing in the decision of Judge Herlihy which could have been read to exclude Judge Porter from dealing with the merits of the appeal.
7. What seems to have happened here is that Judge Porter took the view that the issue before her was whether she accepted that the claimant’s first application was accompanied by the correct fee. For reasons which are unchallenged the judge went on to find that the claimant had completed the payment page of the application form and that the appeal was made in time and rejected on incorrect grounds.
8. When the judge said that she was remitting the appeal to the Secretary of State to consider the application afresh she may have overlooked that the Secretary of State had already made a substantive decision on the merits of the case. It fell to Judge Porter to consider the merits of the case which she did not do and by not doing so fell into an error in law. The Secretary of State’s stated position is that the claimant does not fall within the Immigration Rules and a grant of leave outside the Rules is not appropriate. Mr Butterworth agreed that the sensible course of action, if his primary submission was not upheld, would be to remit the case to Judge Porter to complete her decision on the merits of the case.
9. It is apparent that the appropriate outcome of this case is that the part of Judge Porter’s decision that the appeal be remitted back to the Respondent to reconsider the application is set aside and the matter is remitted to her to make a fresh decision on the merits of the case.

Notice of Decision
10. The appeal is remitted to the First-tier Tribunal to be heard by Judge of the First-tier Tribunal M Porter.

No anonymity direction is made.

Signed Dated 10th April 2017

Deputy Upper Tribunal Judge J G Macdonald