IA/22466/2015

• Status of case: Unreported
• Hearing date: 30 Sep 2016
• Promulgation date: 30 Sep 2016
• Publication date: 18 Jun 2020
• Last updated on: 18 Jun 2020

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22466/2015


THE IMMIGRATION ACTS


Heard at Stoke
Decision and Reasons Promulgated
On September 30, 2016
On September 30, 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS MARIAM ABIMBOLA JOHNSON
(NO ANONYMITY DIRECTION MADE)
Respondent


Representation:
Appellant Mr Bates (Home Office Presenting Officer)
Respondent Mr Abe (Legal Representative)


DECISION AND REASONS
1. The respondent in these proceedings was the appellant before the First-tier Tribunal. From hereon I have referred to the parties as they were in the First-tier Tribunal so that for example reference to the respondent is a reference to the Secretary of State for the Home Department.
2. The appellant, citizen of Nigeria, applied on March 11, 2015 for leave to remain in the United Kingdom. The respondent refused this application on June 1, 2015 and the appellant appealed on June 16, 2015 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.
3. The appeal was heard by Judge of the First-tier Tribunal Colyer (hereinafter referred to as "the Judge") on March 14, 2016 and in a decision promulgated on March 17, 2016 he allowed the appellant's appeal to the extent that he remitted the matter back to the respondent to make a valid decision.
4. The respondent appealed that decision on the ground there was no power to remit and permission to appeal was granted by Judge of the First-tier Tribunal Davidge on August 11, 2016.
5. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.
PRELIMINARY ISSUE
6. Mr Bates indicated that there was a clear error in law in light of the decision of Greenwood (No.2) (para 398 considered) [2015] UKUT 00629. The Tribunal in that appeal made it clear that the power to remit matters back to the respondent went following the amendments made to the 2002 Act by the Immigration Act 2014.
7. Mr Bates accepted the Judge had the power to send the matter back to the respondent under section 86 of the 2002 Act (as amended) where the tribunal concluded that the respondent's decision under appeal was unlawful and the tribunal did not substitute another decision. Where the respondent's decision involved a determination of an application made by the litigant and a lawful decision remains to be made then the Judge should clearly state that in his decision but he must not state the case is being remitted because that power no longer exists.
8. Mr Abe indicated that he agreed with the proposed course of action.

DECISION
9. There was a material error as the Judge had no power to remit a matter to the Secretary of State for a valid decision to be taken.
10. I set aside the Judge's decision and I remake that decision.
11. I allow the appellant's appeal to the extent that I declare there is no valid decision and the Secretary of State is required to make a fresh decision.

Signed: Dated: 30 September 2016


Deputy Upper Tribunal Judge Alis


TO THE RESPONDENT
FEE AWARD
I uphold the original fee award.

Signed Dated: 30 September 2016


Deputy Upper Tribunal Judge Alis