IA/16652/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16652/2015


THE IMMIGRATION ACTS


Heard at Field House
Decisions and Reasons Promulgated
On 3 August 2016
On 4 August 2016




Before

UPPER TRIBUNAL JUDGE STOREY



Between

MR D S KATHIRIYA

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation
For the appellant: Mr H Patel, Counsel, instructed by Hiren Patel Solicitors
For the respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS


1. The appellant is a citizen of India who applied for leave to remain as a Tier 4 l (General) Student on June 2014, was given 60 days to find a new sponsor on 30 December 2014 but then did not receive back from the respondent a copy of passport endorsed with a UKBA Certified Copy stamp, despite the appellant writing within this time period requesting her to do so. Without such a certified copy the appellant could not enrol as a student with another college. At the outset of the hearing Ms Fijiwala for the respondent conceded that thereby the respondent had not followed the "Patel guidance" in force at the time and that accordingly she could not resist the appellant's grounds of appeal.

2. In light of this concession, which in my view accurately reflects what is shown by the file, the appellant's appeal must succeed on the basis that:


a) Although the First-tier Tribunal judge (Judge James) cannot be faulted for not noting the above failure, because the matter had not been raised in the grounds of appeal, it remains that there was an error of process (amounting to an error of law) which has now been demonstrated to have existed prior to the date of the respondent's decision under challenge.

b) The decision made by the respondent on 17 April 2015 refusing to grant the appellant leave to remain and to remove him was not in accordance with the law. The appellant's application remains outstanding before the Secretary of State.

:
3. For the above reasons:

The First-tier Tribunal judge erred in law and her decision is set aside.

The decision I re-make is to allow the appellant's appeal to the extent that the decision appealed against was not in accordance with the law and so the matter remains outstanding before the Secretary of State.


Signed



Dr H H Storey
Judge of the Upper Tribunal

Date: 3 August 2016