Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23608/2015

THE IMMIGRATION ACTS

Heard at Field House
Promulgated
On November 9, 2016
On November 11, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS RIYA MANUBHAI KAPADIA
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
Appellant Mr Parmindar-Singh (Home Office Presenting Officer)
Respondent Ms Nasim (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. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
3. The appellant is a national of India. The appellant entered the United Kingdom on April 14, 2011 on a visa that enabled her to remain here until December 31, 2012.
4. On September 22, 2012 she applied for leave to remain as a Tier 4 (General) Student. The respondent refused her application on January 9, 2013.
5. The appellant appealed that decision on July 1, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and her appeal initially came before a Duty Judge on August 26, 2015. Permission to appeal out of time was granted.
6. Her substantive appeal came before Judge of the First-tier Tribunal Eban (hereinafter referred to as "the Judge") on May 23, 2016. In a decision promulgated on June 15, 2016 the Judge allowed the appeal under the Immigration Rules to the extent that it was not in accordance with the Rules. In essence, the Judge found the appellant had failed to consider the available documents and therefore the respondent's decision was not in accordance with the law.
7. The respondent appealed the Judge's decision on June 29, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Colyer on October 14, 2016.
8. The matter came before me on the above date.
PRELIMINARY ISSUES
9. Ms Nasim submitted a Rule 24 response which due to its lateness I did not treat as Rule 24 response. However, she raised in that document that the respondent had agreed to the course of action taken by the Judge.
10. Neither party had a contemporaneous note of what happened and the only record available to me was the Judge's note. This note is brief but I read the record out to the representatives so they were aware what had been recorded.
SUBMISSIONS
11. Mr Parmindar-Singh submitted the Judge erred by effectively remitting the matter back to the respondent because the respondent had considered the CAS issue and the Judge should have found the Rules were not met because no CAS had been provided.
12. Ms Nasim argued that the Judge allowed the appeal in the manner he did because he was not satisfied the respondent had considered the documents or checked the correct document. She submitted the Judge was not satisfied the correct document had been checked and that approach was open to him.

FINDINGS ON THE ERROR IN LAW
13. This was an old appeal that was delayed due to the fact it was not properly served. When the refusal came to the appellant's notice she appealed. Duty Judge Law gave permission to appeal out of time and the matter was then listed before the FTT Judge.
14. The Judge's notes are brief but record the following:
a. The appellant was not called although she was present to give evidence.
b. The respondent's bundle had evidence of a CAS certificate (page E1).
c. The respondent had proved there was a CAS document by producing the document.
d. The Home Office representative could not add anything more to the situation.
e. The Judge allowed the appeal as the decision was not in accordance with the law.
15. The respondent's bundle includes two CAS records at pages C1 and D1 but neither of these documents were relevant to the current application. The correct CAS details were included in the application form (A16) and a letter contained at E1.
16. The Judge was not satisfied the respondent had considered this evidence and it seems the Judge's reasoning for that was based on the evidence presented.
17. Nothing argued by Mr Parmindar-Singh addresses the judge's approach or the fact his colleague did not even argue the point he made in the FTT.
18. In the circumstances I find the Judge was entitled to make the decision he did and the respondent needs to review the evidence and decide if the Rule was met.

DECISION
19. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the decision.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

FEE AWARD
TO THE RESPONDENT
I uphold the fee award previously made.

Signed: Dated:

Deputy Upper Tribunal Judge Alis