IA/25324/2012

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25324/2012


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 9th May 2013
On 17th June 2013




Before

upper tribunal JUDGE RENTON

Between

ANSER HAYAT KHAN
(ANONONYMITY DIRECTION NOT MADE)
Appellant

and

ENTRY CLEARANCE OFFICER - bangkok
Respondent


Representation:

For the Appellant: Mrs M Ahammed of RMS Immigration Limited
For the Respondent: Ms S Ong, Home Office Presenting Officer


DETERMINATION AND REASONS

Introduction
1. The Appellant is a male citizen of Pakistan born on 2nd August 1986. No earlier than 28th August 2012 the Appellant applied for leave to remain as a Tier 4 (General) Student Migrant. That application was refused on 29th October 2012 for the reasons given in a Notice of Decision of that date. The Appellant appealed, and his appeal was heard by Judge of the First-tier Tribunal James (the Judge) sitting at Hatton Cross on 4th January 2013. For the reasons given in his Determination dated 13th January 2013, the Judge found that there was no valid appeal before him under the Immigration Rules but nevertheless went on to consider the Appellant’s Article 8 ECHR rights. In that respect, he came to the conclusion that there would be no disproportionate breach of such rights by the Respondent’s decision. The Appellant sought leave to appeal that decision, and on 11th March 2013 such permission was granted.
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside. In that connection, I heard brief submissions on behalf of both parties which are recorded in the Record of Proceedings.
3. It is not in dispute that the Appellant did not make his application for leave to remain until 28th August 2012 at the earliest, whereas his leave to remain had expired on the previous day being 27th August 2012. That being the case, the Appellant does not have the right to appeal as he has not appealed an immigration decision as defined by Section 82(2) of the Nationality, Immigration and Asylum Act 2002. The Judge did not err in law in coming to that conclusion. Where the Judge did err in law was to go on to on to consider human rights grounds. As the Appellant had not appealed an immigration decision, he did not have the right of appeal on any grounds. However this does not amount to a material error of law requiring the decision of the Judge to be set aside because the Judge dismissed the appeal on Article 8 human rights grounds.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
I do not set aside the decision that there is no valid appeal.
Anonymity
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I also do not make one.






Signed Dated 17th June 2013


Upper Tribunal Judge Renton