IA/30422/2015

• Status of case: Unreported
• Hearing date: 30 Aug 2016
• Promulgation date: 2 Sep 2016
• Publication date: 17 Apr 2020
• Last updated on: 17 Apr 2020

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30422/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 30 August 2016
On 02 September 2016



Before

UPPER TRIBUNAL JUDGE MCGEACHY


Between

MUHAMMAD EHTESHAM ALI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr S Karim, Counsel, instructed by Addison & Khan Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer


DECISION AND REASONS
1. The appellant appeals with permission against a decision of Judge of the First-tier Tribunal Sweet who in a determination promulgated on 5 February 2016 dismissed his appeal against a decision of the Secretary of State to refuse his applications for leave to remain as a Tier 1 (General) Migrant and as a dependant of a Tier 4 Student.
2. The allegation had been made by the Secretary of State, when refusing the applications that the appellant had used deception in his applications in that he had claimed to have received quite considerable sums by way of salary from a company called Awdry Enterprises between February 2010 and January 2011. The appellant had put forward no evidence that that indeed was the case and the Secretary of State had before her considerable evidence that Awdry Enterprises was a company which had been involved in false payments for immigration purposes and indeed a number of people had been prosecuted in that regard.
3. It was for the judge to consider the issues before him and properly apply the burden of proof which in this case, as deception had been alleged, lay on the respondent. Judge Sweet did not do that. In paragraph 24 he stated quite clearly that the burden of proof was on the appellant. That is a clear error of law. Similarly the terms in which he set out the issues in this case and made findings in paragraph 26 again indicated that he had placed the burden on the appellant.
4. It is therefore necessary for me to set aside the decision of Judge Sweet. This is a case in which matters have moved on since the hearing of the appeal to the extent that the appellant's wife now has indefinite leave to remain and indeed his children will be entitled to apply for registration as they were born here.
5. It is appropriate in these circumstances that there be further findings of fact made particularly on the issue of the Article 8 rights of the appellant and accordingly I consider that it is appropriate, taking into account the Senior President of Tribunals Directions, that this appeal be remitted to the First-tier Tribunal for a hearing afresh.

Notice of Decision
6. My decision is that the appeal is allowed to the limited extent that it is remitted to the First-tier Tribunal for a hearing afresh.


Signed Date

Upper Tribunal Judge McGeachy