IA/27700/2013

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27700/2013


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 15 May 2014
11 June 2014




Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Andriy Kozhak

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms N Braganza of Counsel instructed by Latitude Law
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer


DETERMINATION AND REASONS

1. The appellant appeals with permission against the respondent's refusal to grant him leave to remain in the United Kingdom in line with that of his mother, who is now a naturalised British citizen. The respondent applied paragraphs 276ADE and Appendix FM of the Rules and also considered the question of exceptional circumstances, but she did not address herself to paragraphs 198-199 of the Rules which deal with the position of children of persons being granted indefinite leave to remain in the United Kingdom.
2. The original grounds of appeal were amended at the First-tier Tribunal hearing, to include that question. The First-tier Tribunal determination records that amendment and it is clear that the judge was seised of the question. However, at some point during the determination it seems that those provisions slipped the mind of the judge, who failed either to make findings in relation to paragraphs 198-199 or to make the relevant findings of fact.
3. Since the respondent has not addressed the issues under paragraphs 198-199, it is of course open to her to do so now and to serve that decision on the appellant. If she proposes to do so, in the light of the overriding objective, I would encourage her to do so promptly. The appellant has made available a substantial amount of material relating to his financial position which appears in the bundle before me at pages 82 to 208 thereof.
4. It is plain that the First-tier Tribunal fell into error of law in failing to deal with the application under paragraphs 198 to 199 of the Immigration Rules, that such error is material, and I set aside the determination.
5. The appeal will be reheard and the decision remade in the First-tier Tribunal on 20 October 2014.

Signed Date: 10 June 2014
Upper Tribunal Judge Gleeson