IA/16700/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16700/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 1 April 2016
On 16 September 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD JOMSHED ali
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: No appearance


DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State for the Home Department. The respondent is Mr Jomshed Ali who is a citizen of Bangladesh born on 1 January 1991. However, for the sake of convenience I shall continue to refer to the Secretary of State as the respondent and Mr Ali as appellant which are the designation which they had before the First-tier Tribunal.

2. The appellant appealed to the First-tier Tribunal against the decision of the respondent dated 16 April 2015 to refuse his application for leave to remain under his Tier 4 (General) Student visa under the points-based system. Judge Amin allowed the appellant's appeal outright under the Immigration Rules. Permission to appeal was granted to the respondent by First-tier Tribunal Judge Frankish on 11 February 2016 saying that it was arguable that the First-tier Tribunal Judge should not have allowed the appeal outright but remit to the respondent for a fresh decision after allowing for 60 days.

3. Therefore the appeal should have been allowed to the limited extent of remittal rather than outright.

4. The judge said he was satisfied that the appellant has shown he has adequate maintenance, funds in accordance with paragraph 245ZX because there is a bank statement and therefore the respondent's refusal of the application was not in accordance with the law and the appellant's appeal succeeds under the Immigration Rules because he did not receive the 60-day letter dated 10 February 2015 and allowed the appellant's appeal under the Immigration Rules.

5. At the hearing there was no appearance by the appellant. Mr Avery informed me that the appellant was arrested in November 2015 and is wanted by the Cumbria Police Station. Therefore, he was not surprised that the appellant has not attended. His submissions were that the appeal be sent back to the Secretary of State as per the permission judge suggested.

My Findings

6. It is quite clear that the judge fell into material error by allowing the appellant's appeal outright under the Immigration Rules instead of sending it back to the Secretary of State for their further consideration for them to grant the appellant 60 days.

7. I therefore direct that the appeal be sent back to the Secretary of State awaiting their lawful decision.

Notice of Decision

8. Remitted to the Secretary of State.

No anonymity direction is made.


Signed Date this 4th day of April 2016

Deputy Upper Tribunal Judge Chana


TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.


Signed Date this 4th day of April 2016

Deputy Upper Tribunal Judge Chana