Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28865/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 23rd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms Maureen Patricia Green McFee
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr A Rahman, JKR Solicitors

DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State. The respondent is Ms Maureen Patricia Green McFee, a citizen of Jamaica born on 27 June 1949. However, for the purposes of this appeal I refer to the parties as they were before the First-tier Tribunal where Ms McFee was the appellant.
2. Ms McFee claims to have lived in the UK since 3 October 1994 apart from briefly departing on 5 September 1999 and returning on 5 January 2000, a period of 140 days. The appellant had sought leave to remain on the basis that she had lived continuously in the UK for a period in excess of 22 years, the appellant having made an application on 21 March 2014. In a decision dated 6 August 2015 the Secretary of State refused the appellant's application and was not satisfied that the appellant met the requirements of paragraph 276ADE. The appellant appealed against that refusal to the First-tier Tribunal.
3. In a decision promulgated on 30 August 2016 Judge of the First-tier Tribunal Traynor allowed the appellant's appeal under the Immigration Rules as the judge was satisfied that the appellant met the requirements of paragraph 276ADE(1)(iii) of the Immigration Rules. The judge was satisfied that the appellant had been continuously present in the United Kingdom for a period of in excess of twenty years.
4. The Secretary of State appeals with permission on the following grounds: the judge allowed the appeal solely under paragraph 276ADE and it was submitted that this was a misdirection in law. The judge had referred, at paragraph [7] of the Decision and Reasons, to paragraph 276A(a) of the Immigration Rules, which define continuous residence as residence in the UK for:
"an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of six months or less at any one time, ?".
5. However, the Secretary of State, in the grounds for permission, noted that the judge did not quote the full paragraph 276A(a), which continued (in respect of absences which are to be discounted):
"?, provided that the applicant in question has existing limited leave to enter or remain on departure and return".
6. The appellant had arrived as a visitor for six months on 3 September 1994 and left the UK on 5 September 1999. There was no indication that she had leave to remain on departure.
7. Mr Rahman quite properly conceded that the judge had made an error in relation to his consideration of the Immigration Rules. I agree with that concession. Paragraph 276A(a) is quite clear that a break in the period of continuous leave of less than six months can only be disregarded if the applicant had limited leave to enter or remain upon departure and return. Neither the judge nor the representatives before the First-tier Tribunal appeared to engage with this part of paragraph 276A(a). Mr Rahman conceded that on this basis the appellant could not meet paragraph 276ADE(1)(iii) as she did not meet the correct definition of living continuously in the UK for at least twenty years. This has to be the case as paragraph 276A indicates that it is 'for the purposes of paragraphs 276B to 276D and 276ADE(1) '
8. I am satisfied that the error the judge made was material as Ms McFee cannot succeed under paragraph 276ADE given that the break in her residence occurred during a period when she did not have valid leave in the UK.
9. Given that the judge was (erroneously) of the view that he could allow the appeal under the Immigration Rules the judge went on to find at [24] that it was sufficient for him to allow the appeal without making any other findings concerning issues relating to any other aspect of the appellant's private and family life, either within the terms of paragraph 276ADE, Appendix FM or outside the Rules.
10. Therefore there is an absence of findings of fact in this case. Mr Rahman indicated that at least three witnesses would be required and I note that there were three witness statements before the First-tier Tribunal although witness statement evidence was not called for the reasons already discussed. In addition Mr Rahman indicated that there were children involved in this appeal and that the grandchildren of the appellant were looked after by their other, paternal grandmother. It is regrettable that there was no witness statement or appearance from this potential fourth witness.
11. Taking into account practice statement 7.2 for the Immigration and Asylum Chamber of the Upper Tribunal therefore, I am satisfied that the nature or extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be remade is such that, having regard to the overriding objective in Rule 2, it is appropriate to remit the case to the First-tier Tribunal.
12. I therefore remit the case to the First-tier Tribunal to any judge, other than Judge Traynor, for a hearing de novo. No findings of fact are preserved. However Mr Rahman's concession that the appellant cannot meet the requirements of paragraph 276ADE(1)(iii) is noted. The grounds of appeal to the First-tier Tribunal also contended that the appellant succeeded under paragraph EX.1 of Appendix FM of the Immigration Rules given her relationship with her British partner. That too is an issue on which the First-tier Tribunal will need to make findings.
Summary
13. The decision of the First-tier Tribunal contains an error of law such that it is set aside and remitted to the First-tier Tribunal, other than to Judge Traynor.

No request for an anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As the appellant's appeal is remitted to the First-tier Tribunal I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson