Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16978/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4th November 2016
On 23rd November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MR SYED INFAL BUKHARI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Howard (Solicitor)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS
1. The Appellant is a male, a citizen of Pakistan, who was born on 15th July 1987. He appealed to the First-tier Tribunal against a decision of the Respondent dated 20th April 2015 to refuse leave to remain to the Appellant in the United Kingdom. The Appellant's application was on the basis that he was in a genuine and subsisting relationship with his partner, Shirley Conway.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Adio at Hatton Cross. At paragraph 28 of his determination, the judge stated that:
"The only reason given by the Respondent in the reasons for refusal letter for refusing the application under paragraph E-LTRP.1.7 is because the Appellant and partner were not living together. Both of them have given evidence on this issue. The Appellant states in his witness statement that they applied for leave to remain on the same basis with no change in circumstances and that the reason why they live at separate addresses is that on work days it would take him longer to get to work from his partner's address. It can take him up to one and a half hours to two hours to commute every day on public transport and that the days he is off work he is at times in regular contact with his partner and Rachel [the latter being Shirley Conway's daughter)]."
3. The Respondent Secretary of State challenged the decision of Judge Adio on the basis that the Appellant needed to show that EX.1 applied in addition to satisfying the requirements of E-LTRP.1.2 - 1.12 and E-LTRP.2.1. This is because having found that E.LTRP.1.7 was satisfied it was incumbent upon Judge Adio to determine whether EX.1 applied before he could allow the appeal under the Rules.
4. Permission to appeal was granted on 8th August 2016 by the First-tier Tribunal.
5. At the hearing before me on 4th November 2016, Mr Mills, appearing on behalf of the Respondent Secretary of State, stated that the application for permission to appeal by the Respondent Secretary of State had been misconceived and he would ask the Tribunal to dismiss it today. This is because the Appellant had previously been granted leave. It was not necessary to consider whether EX.1 applied because the Appellant was a person with valid leave and because the Sponsor was a carer for her daughter, Rachel. The only issue was whether the relationship was subsisting. The judge did consider this issue at paragraph 28 of the determination and found that the relationship was genuine and subsisting and proceeded to allow the appeal on that basis. The grounds of application to the Upper Tribunal had been misconceived.
6. For his part Mr Howard, appearing on behalf of the Appellant, submitted that the Appellant already had discretionary leave to remain on the basis of the relationship with his family. So there was no need to satisfy the financial requirement test. The appeal was correctly allowed by Judge Adio. Mr Howard asked that his costs be paid for today because if the Respondent Secretary of State was to concede that the grounds of application had been misconceived it would have been possible to do so prior to this hearing and thus to have avoided attendance at the Tribunal of both parties. The costs were unnecessarily incurred and were thrown away.
7. Mr Mills did not resist the application.
No Error of Law
8. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are those given by Mr Mills in his fair and proper analysis of the legal situation. The issue for the Tribunal was whether the relationship was genuine and subsisting (see paragraph 30 of the determination) and the judge properly addressed this in the light of the evidence, which was uncontested, and proceeded to allow the appeal. Since Mr Mills has quite properly asked me to dismiss the application, it follows that costs must be awarded to the Appellant, for unnecessarily having to attend court, when matters could have been earlier disposed of through consent of the parties. Accordingly, the Appellant is entitled to costs.

Notice of Decision
There is no error of law in the original judge's decision. The determination shall stand.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd November 2016