Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/16659/2015
IA/17441/2015
IA/17443/2015
IA/17446/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 28th July, 2016, given
Extempore. Signed 4th August, 2016
On 9th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

O T T H (FIRST RESPONDENT)
E N O (SECOND RESPONDENT)
O O H (THIRD RESPONDENT)
I O H (FOURTH RESPONDENT)
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr McVitie, a Senior Home Office Presenting Officer.
For the Respondents: Ms Jabin of Counsel.

DECISION AND REASONS

1. The first respondent is Mr O T T H (I apologise if I have mispronounced his names at all). He was born on [ ] 1973 and he is the principal respondent. The second respondent is E N O born on [ ] 1975 and the wife of the principal respondent, their son O O H born on [ ] 2008 and their daughter I O H born on [ ] 2012. All the respondents are citizens of Nigeria.

2. They appealed the decision of the claimant, to refuse to grant them leave to remain in the United Kingdom, to the First-tier Tribunal and their appeal was heard in Bradford by First-tier Tribunal Judge Robson on 27th October, 2015.

3. The judge made findings, but having done so he then went on to consider the respondents' Article 8 claims outside the Immigration Rules. However, he did not first consider whether the respondent, or any of them, met the requirements of the Immigration Rules. He gave no consideration to the reasonable test set out in the Rules and simply allowed the appeals on the basis that the respondent's son had been in the United Kingdom for seven years and has autism.

4. The judge appears to have not taken into account the fact that the respondent's eldest child is not a British citizen and, as at the date of the application, had not been in the United Kingdom for seven years and given that the respondents ability to meet the requirements of the Immigration Rules was not considered, it was necessary for the judge to indicate precisely what exceptional circumstances there were which justified the grant of leave outside the Rules. Unfortunately, the judge simply took into account the fact that the third respondent, the principal respondent's eldest child had now been in the United Kingdom for some seven years.

5. The claimant sought to permission to appeal to the Upper Tribunal and at the hearing before me today both representatives indicated that they agreed that the judge had erred in law and had no objection to the matter being remitted for hearing afresh by the First-tier Tribunal by a judge other than First-tier Tribunal Judge Robson.

6. Ms Jabin agreed that the findings at paragraphs 90, 95, 97, 98 and 99 were unaffected by the challenges and they stand. A time estimate of one and a half hours is respectfully suggested.

Notice of Decision

The determination is set aside, save that the findings of the judge at paragraphs 90, 95, 97, 98 and 99 shall stand. The appeal is remitted to the First tier Tribunal for hearing afresh by a judge other than First Tier Tribunal Judge Robson.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

The First Tier Tribunal made a direction that the respondent be granted anonymity. I have not been asked to vary or remove this direction. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley