Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17253/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 27 January 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

the Secretary of State for the Home Department
Appellant
and

mr manash dhar
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr S Karim, Counsel instructed by Haque & Hausman Solicitors

DECISION AND REASONS

1. The respondent is a citizen of Bangladesh and his date of birth is 30 December 1977. I shall refer to the respondent as "the appellant" as he was before the First-tier Tribunal.

2. The appellant made an application on 28 July 2014 for leave to remain under Article 8 and that application was refused by the Secretary of State in a decision of 23 April 2015. The decision maker considered the application under the Immigration Rules, specifically the five year route, and the application was refused because it was not accepted that the appellant was in a genuine and subsisting relationship with a British citizen. The appellant appealed against that decision and his appeal was allowed by Judge of the First-tier Tribunal N M K Lawrence. Following a hearing at Hatton Cross on 8 July 2016 Judge Lawrence allowed the appeal in a decision promulgated on 8 August 2016. The appeal was allowed under the Immigration (European Economic Area) Regulations 2006.

3. The judge made a number of findings including that the relationship was genuine and subsisting. The Secretary of State was granted permission to appeal by Designated Judge of the First-tier Tribunal Macdonald in a decision on 2 December 2016. Permission was granted on the basis that the judge considered the application under the 2006 Regulations when the appeal was under the Immigration Rules and Article 8.

3. The matter came before me on 11 January 2017. The grounds of appeal assert that the judge erred in allowing the appeal under the EEA Regulations when the appeal was against refusal to grant leave as a spouse under the Immigration Rules.

4. I heard oral submissions from the parties. Mr Clarke indicated that paragraph 3 of the grounds of appeal, namely that the judge's findings at paragraph 8 should not be preserved is not to be pursued as it was conceded no reasons were given for this. Mr Clarke indicated that he had had the opportunity to speak with the appellant's representative, Mr Karim, prior to the hearing and Mr Clarke conceded that on the basis of the finding of the judge that the marriage is genuine and subsisting, the appeal should have been allowed under the Immigration Rules. Mr Karim conceded that there was an error of law for the reasons identified in the grounds of appeal and this was material to the extent that the wrong provision was applied by the judge, but confirmed that in his view the appeal should be allowed under the Rules. The judge materially erred in applying the 2006 Regulations and I set aside the decision to allow the appeal on this basis. I remake the appeal and allow it under the Immigration Rules.

Notice of Decision

5. The Secretary of State's appeal is allowed. The decision of the FtT is set aside. I remake the decision allowing the appellant's appeal under the Immigration Rules.

6. No anonymity direction is made.

Signed Joanna McWilliam Date 27.01.17

Upper Tribunal Judge McWilliam