Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/35509/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th August 2016
On 23rd August 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Surjit Singh
Respondent/Claimant

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent/Claimant: No Representative or attendance

DECISION AND REASONS

1. The claimant is an Indian national with existing leave to remain as a Tier 4 (General) Student, which was curtailed on the grounds that he had exercised deception in order to gain leave to remain in the United Kingdom. That decision is set out in a letter dated 28th August 2004 and a removal decision was made in accordance with Section 10 of the Immigration and Asylum Act 1999. It was made clear within that notice that although he is entitled to appeal against the decision under Section 82(1) of the Nationality, Immigration and Asylum Act 2002, that right of appeal can only be exercised after he has left the United Kingdom. This was a decision made before May 2015 .

2. The claimant sought to appeal against that decision in country to the First-tier Tribunal, where it seems the issue of jurisdiction was not considered.

3. Thus the matter came before First-tier Tribunal Judge Nolan at a hearing on 19th October 2015. The claimant was not present, as he has been classed as an absconder, but the Secretary of State was represented. Curiously the point of jurisdiction was not taken even at that point.

4. Where a human rights claim has been made before the Section 10 notice then there exists an in country right of appeal in respect of the human rights claim. That was not, however, this case. Indeed the Judge at paragraph 1 of the determination says as follows:-
"1. On this basis his existing leave to remain as a Tier 4 (General) Student was curtailed and he was served with a removal decision under Section 10(1)(b) of the Immigration and Asylum Act 1999. The only decision giving rise to a right of appeal was the Section 10 removal decision, which only gave an out of country appeal right. Mr Singh submitted a notice of appeal dated 13th September 2014. Pending removal Mr Singh was granted temporary admission with reporting restrictions. He is recorded as failing to report since 15th September 2014, and is thus considered by the respondent to be an absconder. There is no evidence before the Tribunal as to Mr Singh's current whereabouts.
2. Mr Singh's grounds of appeal were that the decision is not in accordance with the law, and that he did not obtain his TOEIC certificate through deception."
5. Notwithstanding that the Judge set out the law correctly, the Judge nevertheless proceeded to consider the merits of the appeal substantively whether or not indeed deception had been used in the taking of the TOEIC speaking test. In that connection the Judge considered R (on the application of Gazi) v Secretary of State for the Home Department (ETS - judicial review) IJR [2015] UKUT 327 (IAC) which concludes that the evidence as relied upon by the Secretary of State did not establish deception.

6. It is to be noted that Mr Jones, the Home Office Presenting Officer, sought to rely on R (on the application of Mehmood) v SSHD [2015] EWCA Civ 744 which deals with Section 10 removal directions and the appeal from abroad issue. It holds that an out of country right of appeal is an adequate remedy in such cases. That submission is rather pushed aside by the Judge in his consideration of the substantive merits of the appeal.

7. The Secretary of State in her appeal contends as follows:-
"Any right of appeal granted by Section 82(1) is subject to Section 92. Section 92 of the 2002 Act identifies which types of immigration decision may be appealed by a person while he is still in the United Kingdom. An immigration decision which falls within Section 82(2)(g) of the 2002 Act is only capable of an out of country right of appeal unless Section 92(4) of the 2002 Act applies (where a human rights or asylum claim has been made and not certified as unfounded). Bilal Mahmood v SSHD (continuing duty to reassess) IJR [2014] UKUT 00439 (IAC)."
As I have indicated this is an appeal solely against the Section 10 decision.

8. In the circumstances I find that the First-tier Tribunal wrongly accepted jurisdiction to hear this particular challenge against a decision, a challenge which should be made out of country. In the circumstances I find there to be a fundamental error of law such that the decision is null and void and should be set aside and quashed.

9. That being so, I proceed to make a fresh decision on the facts as presented and conclude that the First-tier Tribunal has no jurisdiction to entertain this appeal in country.

Notice of Decision

The appeal of the Secretary of State is allowed. There is no jurisdiction for the First Tier Tribunal to hear this appeal.

No anonymity direction is made.

Signed Date 23 August 2016

Upper Tribunal Judge King TD

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award.

Signed Date 23 August 2016

Upper Tribunal Judge King TD