Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10522/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 May 2016
On 28 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR GAURAV DHANDA
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Stefan Kotas, Home Office Presenting Officer
For the Respondent: Ms A Vatish, Counsel

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of Judge of the First-tier Tribunal Majid whose decision and reasons were promulgated on 29 October 2015. The Claimant in the case is a national of India born on 15 May 1979 who appealed against the decision by the Respondent dated 4 March 2015 refusing him leave to remain in the United Kingdom. The application that he made on 30 December 2013 was for further leave to remain as a Tier 1 (Entrepreneur) Migrant under the points-based system. The Respondent refused that application on 4 March 2015. In his decision of 29 October 2015, the First tier Tribunal Judge allowed the appeal essentially at [12] on the basis that he found, "I think that this appeal should be allowed because the Appellant has a genuine business covered by the relevant immigration rules." Further findings are at [16] where the judge held:
"I am fully conscious of the 'legal requirements' stipulated by immigration law. It is incumbent upon me to advert to the new Rules giving respect to the animus legis dictated by the supremacy of Parliament. The rule of law demands that this Appellant should be helped by the system because:
(a) He is carrying out a genuine business which is permitted by our law in the UK and he is going to create jobs for other citizens here.
(b) The Rules (as they have been carefully looked at by me) permit that the required money is invested by him over the spread of the visa. There is good evidence in his documents showing that his business is growing over the period and he is likely to comply with the rules for this visa.
(c) The Appellant is aware of the fact that his compliance of the rules can justify the extension of his visa (leading to the grant of ILR) if he does not violate any of the governing rules."
2. The grounds in support of the application for permission to appeal, which were made on 5 November 2015, assert that the Judge failed to give adequate or any reasons for findings on material matters. In particular, it was submitted that there are no reasons given by the Judge which validate allowing the appeal. The overall determination appears to be sparse and clearly overlooks the refusal decision. The Judge has failed to address the Respondent's reasons for refusal and it is not even clear what Immigration Rule the Judge considered and there is an absence of reasoned findings in this determination and no indication of balancing the evidence put in by both parties.
3. Permission to appeal was granted by First-tier Tribunal Judge Fisher on 14 April 2016 on the basis that it was arguable that the reasoning for the Judge's conclusion is wholly inadequate. The Respondent is unable to see why the Judge found against her.
Hearing
4. At the hearing before me on 12 May 2016, Mr Kotas, on behalf of the Secretary of State, invited me to look at the Respondent's refusal of 4 March 2015, in particular pages 4 and 5 where detailed reasons were provided by the Respondent for questioning the viability and credibility of the Claimant's business plans and market research into his chosen business sector and also his financial accounts. Mr Kotas submitted that Judge Majid simply had not engaged with the refusal or its reasons nor the issue of whether or not the Claimant's business was a genuine one.
5. In response, Ms Vatish submitted that the Judge had the transcript of the Claimant's interview at D8 of the Respondent's bundle where he had been found to be credible and had been able to answer questions without difficulty. She submitted that whilst the Judge did not give very detailed reasons for his decision he had had all the relevant papers before him. She relied on the decision of the Court of Appeal in SH (Pakistan) [2016] EWCA Civ 426 at [31] in respect of the principle of evidential flexibility. In respect of the specific points raised in the reasons for refusal decision, she submitted that the amount of market research that needed to be done for a business varied, that in respect of business premises the claimant had a virtual office but this was not unusual in a modern age and that if the Respondent had had concerns that these should have been put to the Claimant at interview. She reiterated that the Judge had all the relevant information in front of him and had made a reasoned decision.
6. In response, Mr Kotas submitted that if it was the Claimant's case that the outcome of the appeal was inevitable, even if that was correct this does not exempt the Judge from his duty to give reasons.
Decision
7. I found at the hearing that the Judge had erred materially in law and that the matter required remittal back to the First-tier Tribunal for a hearing de novo. I now give my reasons.
8. It is not apparent from the decision of First-tier Tribunal Judge Majid what the case is actually about. There is indirect reference, for example, at [12] to a finding that the Appellant had a genuine business, but there is nowhere in the decision and reasons any reference to the relevant Immigration Rule viz paragraph 245DD of the Rules. Nor is there any reference to the particular points taken by the Respondent in her refusal decision.
9. Whilst a First-tier Tribunal Judge is not expected to necessarily set out in great detail the entirety of the relevant Immigration Rule and the reasons for refusal, it is incumbent upon the Judge to at least make reference to the relevant Rule and to the core issues that are in dispute between the parties. Regrettably this decision failed to properly engage with the evidence and the reasons for refusing the application and to make proper and adequate reasoned findings. For these reasons it cannot be upheld and a fresh de novo hearing before the First-tier Tribunal will be required.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Chapman 28 September 2016