Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26110/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 9 September 2016
On 16 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

yvonne campbell
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Kumar, J M Wilson Solicitors LLP
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant argues that FtT Judge Law erred by failing to recognise that her sponsor is settled in the UK. If she is correct and her husband is settled here then the judge's decision must be wrong in law because the judge dismissed the appeal because the sponsor was not settled here.
2. Although this was the appellant's appeal, at the outset Mr Mills explained the Home Office's original decision (dated 10 July 2015) was not saying the sponsor was not settled in the UK but that the evidence did not show that he was. Unfortunately, this was misunderstood by the judge who failed to recognise the significance of the evidence provided for the appeal.
3. The school records show the sponsor was resident in the UK in 1963. At that time Jamaica was a colony and was not independent. As such there were no restrictions in the sponsor entering of remaining in the UK. On Jamaica becoming independent the sponsor (who was born on the island) ceased to be a Citizen of the United Kingdom and Colonies and became a Jamaican citizen. But he remained a Commonwealth citizen and his status in the UK was unaffected. As he was already resident in the UK when the Commonwealth Immigrants Act 1968 came into force has immigration status was unaffected.
4. As a result of his residence in the UK from 1962 or 1963, on 1 January 1973 he became a settled person by operation of s.1(2) of the Immigration Act 1971. He has never lost this status. He can only do so if he were absent from the UK for a period of more than two years and there is nothing to suggest that has ever happened.
5. Mr Mills said there may be some confusion as to whether the sponsor has ever acquired a right of abode or British citizenship. On the evidence provided he has not. This is undisputed since the sponsor has never claimed to have a right of abode or British citizenship.
6. In light of Mr Mills's observations, I advised Mr Sarwar that I would allow the appeal to the Upper Tribunal. Both representatives agreed that because Judge Law had failed to make any relevant findings in relation to paragraph EX.1 of appendix FM (which must be considered since the appellant is in breach of the immigration laws and the couple cannot meet the financial requirements for the five-year partner route) the case must be remitted to the First-tier Tribunal for a hearing de novo.
7. The First-tier Tribunal will proceed on the understanding that the sponsor is a settled person in the UK. This is because of Mr Mills's concession. Of course, a concession can be withdrawn. It is unlikely in this case unless other evidence comes to light. If the concession is to be withdrawn, the Home a Office must provide confirmation of its decision at least 14 days before the First-tier hears the appeal and a skeleton argument.
Decision
The decision and reasons statement of Judge Law contained an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before any judge other than Judge Law.
No findings of fact are preserved although the judge hearing the remitted appeal will have regard to the above comments.

Signed Date 16 September 2016

Judge McCarthy
Deputy Judge of the Upper Tribunal