IA/16639/2015 & IA/16654/2015

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The decision


IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16639/2015
IA/16654/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision signed:
On 22 February 2017
Sent out: On 27 February 2017


Before

Upper Tribunal Judge John FREEMAN

Between

Kuldipkumar Jayantilal Soni
Priyanka Sanjaybhai
appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
respondent

Representation:
For the appellants: Mohd. Iqbal, counsel instructed by London View Chambers
For the respondent: Mr Chris Avery

DECISION AND REASONS
These are appeals by citizens of India, a husband and wife, against a decision of Judge O'Flynn sitting at Hatton Cross on 13 July 2016. The husband was born in 1985 and the wife in 1992. In 2009 the husband had leave to enter as a student which was later extended until 2015. Before that, in 2014, he applied for leave to remain as a general migrant under Tier 2 but on 16 April 2015 that was refused and his leave was curtailed under paragraph 323(1). This allows curtailment on (i) the discretionary grounds at paragraph 322 (2) - (5A), or (ia), if deception has been used; but not on the mandatory grounds at 322 (1)
2. The husband was said to have produced a false National Institute of Health Care Excellence [NIHCE] certificate on his application for leave to remain. The notice giving that decision probably was included in the bundle before the judge, but not the explanatory letter, which may have led to the problem which then arose.
3. There was no right of appeal in the circumstances against the decision to refuse leave to remain; but there was a right of appeal against the curtailment decision on limited grounds. The Rules in question required the judge to consider
(a) the exercise of the discretion under paragraph 322 (2) or (2A) (the apparently relevant discretionary grounds; and
(b) whether the applicant had been guilty of deception, contrary to paragraph 323 (1a) when he produced the allegedly false certificate.
This was not a mandatory decision under paragraph 322 (1A) on the production of false documents, as the judge seems to have supposed.
4. In those circumstances both sides are agreed that there will have to be a fresh hearing, which will take place at Hatton Cross before another first-tier judge, not Judge O'Flynn.
Appeal 
Fresh hearing in First-tier Tribunal
(a judge of the Upper Tribunal)