Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/34871/2015
IA/34872/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 29 March 2017
On 3 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

huseYin ozdemir
siyar ozdemir
Respondents

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondents: Ms K Parker instructed by Qualified Legal Solicitors

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Introduction
2. The first appellant is a citizen of Turkey who was born on 10 February 1985. The second appellant is his son who is also a citizen of Turkey and was born on 1 January 2011. The second appellant’s appeal was entirely dependent upon the outcome of his father’s appeal.
3. The first appellant entered the United Kingdom on 23 October 2008 as a visitor with leave valid until 23 October 2010. On 3 August 2009, he made an application for leave to remain under the European Community Association agreement relating to Turkey (the “Ankara Agreement”) as a businessman or self-employed person. Leave was granted until 25 August 2010. On 27 October 2010, the first appellant made a further application for leave on the same basis which was granted until 25 August 2013.
4. On 20 August 2013, the first appellant made an application for indefinite leave to remain (“ILR”) under the applicable 1973 Immigration Rules (namely para 28 of HC 510) which applied by virtue of the ‘stand-still’ clause applicable to such applications made by Turkish citizens. That application was refused but limited leave to remain was granted until 25 August 2014.
5. On 3 September 2014 the appellant made a further application for ILR which was refused on 23 February 2015 with no right of appeal. That latter matter, as I understand it, was challenged by judicial review proceedings lodged on 26 May 2015 and those proceedings were compromised on the basis that the first appellant’s application for leave would be reconsidered and, if unsuccessful, he would have a right of appeal to the First-tier Tribunal.
6. Following that reconsideration, the Secretary of State refused the first appellant’s application for ILR on 26 November 2015. They appealed to the First-tier Tribunal.
The Appellants’ Appeal to the First-tier Tribunal
7. Judge M M Thomas accepted that the first appellant met the requirements of para 28 of HC 510 with the exception of establishing that he had been a businessman or self-employed person for the required period of four years. In reaching that conclusion, the judge restricted her consideration to documents which had been submitted with the application on the basis that she was not entitled to look at documentation submitted for the first time at the hearing. However, the judge went on to allow the appeals on the basis that, under the relevant policy of the Secretary of State, the Secretary of State should have exercised discretion in the first appellant’s favour and granted him a further period of leave of twelve months.
The Appeal to the Upper Tribunal
8. The Secretary of State appealed against that decision on the ground that it was unclear what, if any, discretion the respondent had to grant twelve months’ leave if the requirements for ILR in para 28 were not met.
9. The appellants filed a rule 24 notice. In that notice, the appellant’s accepted that the judge had been wrong to allow the appeal outright on the basis that discretion to grant twelve months’ leave should be exercised in the appellants’ favour.
10. However, the rule 24 response challenged the judge’s finding in respect of para 28 on the ground that the judge had been wrong in law to restrict her consideration to evidence submitted with the application when, under s.85(4) of the Nationality, Immigration and Asylum Act 2002, the judge should have considered evidence about any matter relevant to the substance of the decision including evidence concerning a matter arising after the date of decision.
11. Ms Parker, who represented the appellants, conceded before me that the judge should not have allowed the appeals outright on the basis that discretion should have been exercised in the appellant’s favour to grant discretionary leave. Ms Parker accepted, as set out in para 10 of the rule 24 notice, that the correct outcome was that the decision was “otherwise not in accordance with the law” and the exercise of discretion was a matter for the Secretary of State to consider on remittal.
12. On behalf of the Secretary of State, Mr Mills accepted that the Secretary of state had a discretion under her guidance to grant discretionary leave if the requirements of para 28 for the grant of ILR were not met. He acknowledged Ms Parker’s concession that the appeal should have been remitted to the Secretary of state to consider the exercise of that discretion.
13. Further Mr Mills also accepted that the judge had erred in law in reaching her adverse finding under para 28 of the 1973 Rules by failing to consider all the evidence that was available at the hearing. She was not, he accepted, restricted to considering the evidence submitted with the application.
14. Both parties pleaded errors of law were, as a result, conceded. After a short adjournment, both representatives agreed that the proper disposal of the appeal was to set aside the decision of the First-tier Tribunal and to substitute a decision that the decision of the Secretary of State was “otherwise not in accordance with the law”. The consequence of that was that the application of the first appellant for leave under para 28 of the 1973 Rules (and the application of the policy to grant twelve months’ discretionary leave if the requirements of para 28 were not met) remained outstanding before the Secretary of State to be lawfully determined on all the evidence now available. Mr Mills accepted that if the application was unsuccessful, because of the outcome of the earlier judicial review proceedings, the appellants would have a further right of appeal to the First-tier Tribunal.
Decision
15. Accordingly, the First-tier Tribunal’s decision to allow the appellants’ appeals involved the making of an error of law and the decision is set aside.
16. I remake the decisions: the Secretary of State’s decisions to refuse the appellants’ leave were not in accordance with the law.
17. The appellants’ applications for leave remain outstanding before the Secretary of State as set out in para 14 above.

Signed

A Grubb
Judge of the Upper Tribunal

Date 31 March 2017

TO THE RESPONDENT
FEE AWARD

Judge M M Thomas declined to make a fee award on the basis that the outcome of the appeal resulted from evidence presented at the appeal hearing. On that basis, I see no reason to depart from her conclusion that no fee award is made even though the appeals are allowed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 31 March 2017