IA/22979/2015

• Status of case: Unreported
• Hearing date: 23 Jan 2017
• Promulgation date: 8 Feb 2017
• Publication date: 25 Oct 2021
• Last updated on: 25 Oct 2021

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22979/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 23rd January 2017
On 08 February 2017




Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr Hamza Akacha
(aNONYMITY DIRECTION NOT made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr A Bajwa, A Bajwa & Co Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer


DECISION AND REASONS

1. The appellant appealed with permission against a decision of First-tier Tribunal Judge R Chowdhury promulgated on 1st August 2016 dismissing the appellant's appeal under the Immigration Rules and dismissing the appeal under Article 8 of the European Convention on Human Rights.
2. Mr Hamza Akacha, the appellant, submitted his application for leave to remain in the United Kingdom as the unmarried partner of a British citizen and on the length of residence in the United Kingdom. The Secretary of State refused that application in her decision on 11th June 2015. It was that decision which was appealed to the First-tier Tribunal and refused.
3. The grounds for permission to appeal are that the First-tier Tribunal Judge in paragraph 27 stated that the appellant could not fall for consideration under the partner route under the Immigration Rules as he could not satisfy the immigration status requirement as he had entered the UK illegally and had subsequently withdrawn a claim for asylum. The appellant relies on the First-tier Tribunal Judge's finding in paragraph 26 that this couple had in fact cohabited for two years prior to the appellant's application to the respondent. The application was made on 31st March 2015 and it would appear the appellant and his partner have undergone a religious marriage.
4. It is accepted by the Secretary of State that the appellant was therefore, treated by the judge, as an unmarried partner of a British citizen living in the United Kingdom as defined under the Immigration Rules GEN.1.2(iv) and therefore the judge should have applied the Immigration Rules and made reference to EX1(b). There should have been a finding on the genuine and subsisting relationship with a partner, whether the appellant was a partner of someone who is in the UK and is a British citizen, and whether there are insurmountable obstacles to family life with that partner continuing outside the UK.
5. Specifically at the hearing before me it was stated that there was further medical evidence which should have been produced and should the decision be found to contain an error of law, which is in fact conceded by the Secretary of State, the matter should be remitted back to the First-tier Tribunal.
6. I do find an error of law. It would appear that the judge failed to determine the case in respect of the Immigration Rules and EX1. This is not considered, in error, on the basis that the appellant entered the UK illegally.
7. As such, and because of the nature of the further evidence to be considered, and the findings to be made (and I note there would appear to be no directions sent out by the Tribunal), the decision should be set aside and the matter remitted back to the First-tier Tribunal for a full hearing.
No anonymity direction is made.


Signed Helen Rimington Date 7th February 2017

Upper Tribunal Judge Rimington