Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29071/2012

THE IMMIGRATION ACTS

Heard at Sheldon Court Birmingham
Determination Promulgated
On 15th May 2013
On 7th June 2013

Before

MR C M G OCKELTON, VICE PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Sudhir Malik

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss E Norman of Counsel instructed by Bassi Solicitors
For the Respondent: Miss A Pleass, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction and Background
1. The Appellant appeals against a determination of Judge of the First-tier Tribunal Parkes promulgated on 19th March 2013.
2. The Appellant is an Indian citizen born 14th August 1986 who applied for indefinite leave to remain as the dependent relative of a person present and settled in the United Kingdom, pursuant to paragraph 317 of the Immigration Rules. The Appellant also relied upon Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
3. The application was refused on 29th November 2012, and the Respondent issued a combined Notice of Immigration Decision refusing to vary leave to remain, and deciding to remove the Appellant from the United Kingdom.
4. The Appellant appealed and his appeal was heard by Judge Parkes on 6th March 2013. The judge recorded that at the start of the hearing, it was conceded on behalf of the Appellant, that he could not succeed under the Immigration Rules, and he was pursuing his appeal under Article 8 of the 1950 Convention only. The appeal was dismissed.
5. The Appellant applied for permission to appeal to the Upper Tribunal and in grounds settled by counsel, it was contended that the judge had erred in law in the following way;

“Making a misdirection of law. At paragraph 2 of the skeleton argument submitted before the judge it was stated (in bold);
The section 47 aspect of the decision is unlawful and the Tribunal must find it so; Adamally and Jaferi (section 47 removal decisions; Tribunal Procedures) [2012] UKUT 00414 (IAC). The appeal against the removal decision must be allowed.
It was confirmed orally before the judge that the appeal against the removal decision should be allowed and the Respondent’s representative did not demur from this approach. The judge has failed to deal with the unlawful removal decision and has merely dismissed the appeal. This is an error of law.
The Upper Tribunal should substitute a decision allowing the appeal against the removal decision.”
6. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Macdonald who found it arguable that the judge may be said to have failed to deal with the removal decision as he ought to have done.
Submissions
7. At the hearing before us both representatives were succinct, and accepted that the issue before us was narrow. Miss Norman submitted that the judge had erred as contended in the grounds contained within the application for permission to appeal and Miss Pleass agreed. We were invited to set aside the decision of the First-tier Tribunal, and substitute a fresh decision allowing the appeal to the extent that the Respondent’s decision to remove the Appellant was not in accordance with the law.

Our Conclusions and Reasons
8. The judge erred by failing to determine that the Respondent’s removal decision made under section 47 of the Immigration, Asylum and Nationality Act 2006 was not in accordance with the law. The appeal should have been allowed on that basis.
9. There was no challenge to the well reasoned decision to dismiss the appeal with reference to paragraph 317, and Article 8 of the 1950 Convention, and those findings stand and are preserved.
10. The Upper Tribunal decided in Adamally and Jaferi that when a removal decision purportedly under section 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave, the section 47 decision is unlawful, but the decision refusing leave is a separate decision that requires determination. Section 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but section 86 of that Act allows and requires the determination to reflect differences in outcomes.
Decision
The determination of the First-tier Tribunal contained an error of law and is set aside. We substitute a fresh decision.
The Appellant’s appeal is dismissed under the Immigration Rules and on human rights grounds.
The appeal is allowed to the extent that the Respondent’s decision to remove him is not in accordance with the law, and that decision remains outstanding before the Respondent.
Anonymity
There was no anonymity direction made in the First-tier Tribunal. There was no application for anonymity and no anonymity direction is made by the Upper Tribunal.

Signed Date 20th May 2013

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal has been dismissed under the Immigration Rules and on human rights grounds but allowed in respect of the decision to remove under section 47 of the 2006 Act. However no fee is payable to appeal a section 47 decision and therefore no fee award is made.

Signed Date 20th May 2013

Deputy Upper Tribunal Judge M A Hall