IA/28340/2013

• Status of case: Unreported
• Hearing date: 16 Jun 2014
• Promulgation date: 19 Jun 2014
• Publication date: 22 Jul 2014
• Last updated on: 22 Jul 2014

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28340/2013


THE IMMIGRATION ACTS


Heard at Glasgow
Determination promulgated
on 16th June 2014
On 19th June 2014




Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

AYYAPPAN THIRUGNANA SAMBANDAM

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



For the Appellant: Mrs J Moore, of Drummond Miller, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

No anonymity order requested or made


DETERMINATION AND REASONS


1. The Appellant is a citizen of India, born on 2nd January 1988. He applied for leave to remain as an Entrepreneur, along with his business colleague M F J Hussain. Both appealed against refusal. In a joint determination, promulgated on 26th March 2014, First-tier Tribunal Judge A G M Baldwin allowed the appeal of Mr Hussain (IA/28339/2013) on the grounds that the Respondent's decision was unfair and not in accordance with the law, to the limited extent of inviting the Respondent to look again at his application. However, the judge thought that the shortcomings in the present Appellant's application were more numerous, and that the Respondent had not acted unfairly or unlawfully. His appeal was dismissed.

2. The Appellant appealed to the UT on the grounds that the items missing from his application were such as should have resulted in a similar opportunity being extended to him.

3. The Respondent filed a Rule 24 reply, dated 11th April 2014, to the grant of permission. This observes that as the Appellant had been seeking to rely on his Entrepreneur partner's funds, and the funds were not held in a joint account, there was no prospect of meeting the requirements of the Rules anyway, and so any error could not be material.

4. Mrs Moore acknowledged that the observation in the Rule 24 reply has some force, although it is a point not noted by either side up to that stage. She sought to amend the Grounds of Appeal in that light, and argued that this reflected a defect in the application which the Appellant should have been invited to put right, and that the outcome in the present proceedings should similarly be a remit to the Respondent. (The co-Appellant's case remains outstanding before the Respondent for further decision.)

5. Mr Mullen acknowledged that the original decision-maker looked at the case on an incorrect basis. The Appellant's partner is not a third party source of funds. Rather, this is an entrepreneurial team of two directors of one limited company. He agreed that the appropriate outcome was for this case to be remitted to the Respondent for a fresh decision.

6. The determination of the First-tier Tribunal, for the above reasons and of consent, is set aside. The appeal, as originally brought to the First-tier Tribunal, is allowed to the following extent: the Respondent's decision was not in accordance with the law, and the original application remains outstanding, along with the co-Appellant's application, for a fresh decision by the Respondent.



18 June 2014
Judge of the Upper Tribunal