Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30491/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 25th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

ayodeji olugbenga akinmoju
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Tampuri, Legal Representative, Tamsons Legal Services
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a citizen of Nigeria, appealed to the First-tier Tribunal against a decision of the Secretary of State dated 27th August 2015 refusing his application for leave to remain in the UK as the spouse of a person present and settled here. First-tier Tribunal Judge Majid dismissed the appeal and the Appellant appeals with permission to this Tribunal.
2. The Appellant's application for leave to remain was refused on the basis that the Respondent did not accept that the Appellant's relationship with the Sponsor is genuine and subsisting or that the Appellant and the Sponsor live together and intend to do so permanently. The application was therefore refused under paragraph 287(a)(ii) and (iii) of the Immigration Rules. The First-tier Tribunal Judge heard evidence from the Appellant and the Sponsor. At paragraph 17 of the decision the judge concluded, "? I do accept Mr Tampuri's submission that the marriage was 'subsisting and genuine' particularly when the wife was making a statement for it and she had come to the Tribunal to support her partner's case".
3. However at paragraph 18 the judge said;
"The Appellant's oral evidence was that the Respondent was 'incorrect' in asserting that the marriage had lasted for years. This evidence has to be compared with the assertion of the author of the Refusal Letter that the Appellant did not 'categorically' corroborate his wife's assertion that she did not know the address at which they suggested they were living together. (The word 'categorically' gives a particular emphasis which should be noted). This comparison unfortunately makes it difficult to prefer the Appellant's evidence as compared with the Respondent's reasoning; making the refusal reasonable."
The judge went on at paragraph 19 to say:
"... This Appellant cannot benefit from the Rules because, even though the marriage is 'subsisting and genuine' he cannot ask me to ignore the express wording of the Refusal Letter whereby the author of the letter was not sure of the credibility of the Appellant."
The judge went on to conclude at paragraph 20 that he was "not persuaded that the Appellant comes within the relevant immigration law, as amended".
4. The Appellant challenges that decision on the basis that the judge made a material misdirection in that, having accepted that the Appellant is in a genuine and subsisting relationship with his wife, he went on to conclude that the Appellant cannot benefit from the Immigration Rules without giving clear and logical reasoning for that conclusion.
5. The Rule 24 response states that the Respondent does not oppose the Appellant's application for permission to appeal and invites the Tribunal to remit the matter to the First-tier Tribunal to determine the appeal at a fresh hearing. The Respondent states that it is quite clear the reasoning was inadequate as was "the frankly curious suggestion the Judge considered himself unable to go behind the reasons for refusal".
6. At the hearing before me Mr Kotas relied on the Rule 24 notice and Mr Tampuri submitted that the decision of the First-tier Tribunal should be set aside and the appeal remitted to the First-tier Tribunal.
Error of law
7. In this appeal the judge was required to make a decision as to whether the Appellant met the requirements of the Immigration Rules. Although the judge made an assessment on the basis of the oral evidence that the marriage was genuine and subsisting he did not give any reasons for reaching that conclusion. It is unclear from the decision what the judge's reasoning or thinking was.
8. Further, and more significantly, the judge appears to have preferred the reasoning of the Respondent in the reasons for refusal letter to his own assessment of the oral evidence thereby misunderstanding his role in relation to the appeal. If the judge believed that the Appellant could in fact meet the requirements of the Immigration Rules in dispute, then the judge should have allowed the appeal.
9. In these circumstances I find that the judge made a material misdirection and that the decision should be set aside.
10. The parties were in agreement with my view that, in these circumstances, the nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
11. The decision of the First-tier Tribunal contains a material error of law and I set it aside. I remit the appeal to the First-tier Tribunal so that the appeal may be heard afresh.
12. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes