Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10286/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th August 2016
On 22nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

ayesha azmat
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr S Walker, Home Office Presenting Officer
For the Respondent: Mr Z Nasim, Counsel, instructed by Legal Rights Partnership

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of Judge Coffey made following a hearing at Hatton Cross on 18 November 2015.
Background
2. There is a very lengthy immigration history to this matter. The claimant arrived in the UK on 16th October 2010 with entry clearance as a work permit dependant of her spouse Azmat Rauf Khan, valid from October 2010 until 30th September 2013. Mr Khan's entry clearance was then curtailed on 8th May 2012 although the Appellant's was not. He commenced judicial review proceedings and the Appellant was granted leave outside the Rules for two months pending their conclusion. Her leave then expired and she applied to extend it for twelve months, which was refused on 24th June 2013.
3. In a determination made following a hearing at Richmond on 13 February 2014 Judge Blum allowed the Appellant's appeal. The Secretary of State had mistakenly believed that the proceedings were at an end.
4. Judge Blum recorded that it was agreed by both the representatives before him that the appeal ought to be allowed so that the Appellant's husband could pursue his judicial review proceedings; she and her daughter should not be required to leave the UK whilst he argued his case. He was arguing that the cancellation of his leave was not lawful. If that was found to be correct he would be in a position to apply for indefinite leave to remain before the expiry of his original leave, and the Appellant would have been able to apply for ILR as his dependant. Hence the outcome was of significant importance.
5. In fact the claimant's husband lost his application before the Administrative Court but he was granted permission to appeal to the Court of Appeal. A date has been set for the hearing of that matter on 6th or 7th December 2016. On that basis the judge allowed the appeal and made a direction for discretionary leave for twelve months under Section 87 of the Nationality, Immigration and Asylum Act 2002.
6. The Secretary of State challenged her decision both on the basis that she had exceeded her remit in directing the Secretary of State as to the period of leave to be granted, relying on the case of IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787 which held that, following a successful Article 8 appeal, the Respondent cannot remove the Appellant but it is for her to decide whether to exercise her discretion to grant leave to remain and if so for how long.
7. The Secretary of State also argued that the judge had failed to have regard to the wider competing public interests set out in Section 117B of the 2002 Act.
8. Permission to appeal was granted by Judge Hollingworth on 12th July 2016.
The hearing
9. It is not necessary to go into any detail in this case since the outcome was agreed between the parties.
10. Mr Walker relied on his grounds.
11. Mr Nasim submitted that in fact the judge had referred to Section 117B at paragraph 6 of the determination but in any event this was not a precarious private life case. The circumstances were most unusual and 117B had little application to these particular circumstances.
12. I do not agree with him. It is quite apparent from the determination that the judge did not set out the requirements of paragraph 117B in the Secretary of State's favour and it is clear that they were not in her mind when she made the decision. She was obliged to take them into account, and accordingly erred in law. Her decision is set aside.
13. Having said that I would make exactly the same decision as she did, and I follow the reasoning of Judge Blum. The circumstances today are essentially the same as they were then.
14. Mr Walker sensibly did not seek to argue otherwise. It is quite clear that the proceedings will be determined in a very short period of time. Within a matter of a very few months the family will know whether they will be in a position to make another application or whether they will need to leave the UK. Mr Walker made no argument to suggest that it would be proportionate for Appellant to be removed in the interim. He said that he would indicate that a period of six months would be a reasonable period of leave in order that the Appellant can remain in the UK with her husband until the Court of Appeal proceedings are disposed of.
Notice of Decision
15. The decision of Judge Coffey is set aside and remade in the same terms. The Appellant's appeal is allowed under Article 8.

No anonymity direction is made.

Signed Date 20 August 2016
Upper Tribunal Judge Taylor