Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08684/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On 4 April 2017
On 6 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

IRFANA TASNIM
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lewis, Garden Court Chambers
For the Respondent: Mr Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. On 22 September 2016 I set aside the decision of the First-tier Tribunal promulgated on 23 February 2016 in relation to the Appellant's appeal under Article 8 of the European Convention on Human Rights for the reasons set out in the decision appended hereto.
2. I adjourned the appeal for a resumed hearing to remake the decision. The case was further adjourned due to pending Judicial Review proceedings in relation to the Appellant's husband. However, at the hearing on 4th April 2017 Mr Lewis informed the Tribunal that the Appellant's husband has now made an application to the Secretary of State for leave to remain on the basis of Article 8.
3. If that application is refused, and not certified, the Appellant's husband will have a right of appeal to the First-tier Tribunal. As the Appellant has not had her Article 8 appeal determined as yet I agreed that this appeal and any appeal made by the Appellant's husband, should his application be refused, would most appropriately be heard together. In these circumstances, and in order to avoid any further delay in disposing of the Appellant's appeal, I decided that it is appropriate to remit this appeal to the First-tier Tribunal to be linked with that of the Appellant's husband should his application be refused.
4. Otherwise, as the Appellant's Article 8 appeal has yet to be determined, it is appropriate for a fresh hearing to take place in the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law.
I set that decision aside.
I remit the decision to the First-tier Tribunal for a de novo hearing.

Signed Date: 4 April 2017

Deputy Upper Tribunal Judge Grimes

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08684/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 22 September 2016

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

IRFANA TASNIM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr P Lewis, Garden Court Chambers
For the respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The appellant is Mrs Irfana Tasnim, a national of Bangladesh. She appealed to the First-tier Tribunal against the decision of the Secretary of State dated 16 February 2015 to refuse her application for leave to remain as the dependant of her husband, a Tier 4 student. Judge of the First-tier Tribunal Cohen dismissed her appeal under the Immigration Rules. The appellant now appeals with permission to this Tribunal.
2. The appellant's husband’s leave to remain as a Tier 4 student had been curtailed following an allegation that he had used fraud to obtain a TOIEC certificate. Accordingly the respondent refused the appellant's application for leave to remain on the basis that her husband did not have leave to remain as a Point Based System Migrant and the appellant failed to meet the requirements of paragraph 319C(b) of the Rules.
3. The appellant appealed to the First-tier Tribunal on the grounds that the decision was not in accordance with the Immigration Rules, on the grounds of fairness, on compassionate grounds and on the ground that the decision breaches her right to private and family life in the UK under Article 8 of the European Convention on Human Rights.
4. First-tier Tribunal Judge Cohen considered that the appellant's appeal amounted to an attempt to appeal against the appellant's husband‘s cancelled leave through the back door and declined to consider the merits of the appellant's case challenging the refusal of her husband’s application. The Judge went on to dismiss the appeal under the Immigration Rules. The Judge also made some positive observations about the appellant's husband’s ability to speak English and his qualifications and recommended that the respondent reconsider the appellant's husband’s status and consider granting him an in-country right of appeal.
5. In her grounds of appeal to the Upper Tribunal the appellant contends that the First-tier Tribunal Judge erred in failing to determine the appeal under Article 8 of the ECHR.
6. At the hearing before me Mr Norton accepted that the Judge had erred in failing to determine the Article 8 appeal.
7. I find that the First-tier Tribunal Judge made a material error in failing to determine the appeal under Article 8. The decision in relation to the Rules has not been challenged and therefore still stands. I indicated that I would proceed to determine the Article 8 appeal; however Mr Lewis applied for an adjournment as the appellant had taken ill on the morning of the hearing. Mr Norton had no objection to the adjournment application.
8. In order to remake the decision I hereby adjourn the appeal for a resumed hearing. The purpose of the resumed hearing will be to hear any relevant evidence and submissions in relation to the determination of the appeal under Article 8.

DIRECTIONS
1. The appeal is adjourned for a resumed hearing on 9 November 2016 to consider the appellant's appeal under Article 8.
2. Not later than 14 days before the hearing the parties must file with the Upper Tribunal and serve on each other:
all witness statements and documentary evidence upon which it is intended to rely at the hearing;
3. Time estimate- 2 hours.

A Grimes
Deputy Judge of the Upper Tribunal

Dated: 22 September 2016