Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA355492013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 May 2016
On 9 June 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

ninfa fraciels armoa olmedo
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Haywood of Counsel
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Paraguay born on 22 July 1984. She arrived in this country as a visitor on 15 May 2004 and was granted leave to remain as a student, her latest leave expiring on 21 August 2012. She made an application for further leave to remain on 4 July 2012 and this application was refused on 8 August 2013. This is the refusal the subject of the appeal proceedings before me. The appellant has a partner who came to the UK in October 2004. He unsuccessfully attempted to extend his visa and he has overstayed. The appellant has a son who came to the UK in April 2007 at the age of 6 and a daughter who had been born in London on 17 October 2008. She had a third child born in 2014.
2. The judge stated that the appeal was solely under Article 8 and she dismissed it for reasons given in her determination.
3. In the grounds of appeal it was argued that the judge was in error in so determining the matter because the appellant's primary submission was that she satisfied the requirements of paragraph 276B of the Immigration Rules as someone who had lived lawfully and continuously in the UK for more than ten years and who had passed the 'Life in the UK Test' and the B1 English exam. It was submitted that the judge's failure to consider this ground at all in her determination was an error of law. The focus of the submissions from both parties at the hearing was on the argument that the appellant met the requirements for a grant of indefinite leave to remain under paragraph 276B of the Rules. Article 8 was argued as a secondary or alternative ground only if the primary submission was not accepted. Reference is made in the grounds to a letter written on 3 March 2015 raising the issue under the Immigration Rules. The focus of the appeal should have been on the appellant rather than her family as she had accrued the relevant time under Section 3C to meet the lawful residence requirements. At the date of the appeal the appellant's elder child had been in the UK for more than seven years and the test was one of reasonableness rather than insurmountable obstacles.
4. Permission to appeal was granted against the judge's decision on both the points made under the Rules as well as on Article 8. In the Secretary of State's response it was noted that the letter dated 3 March 2015 was not attached to the grounds as received by the Secretary of State and submitting that the judge had directed herself correctly in relation to Article 8.
5. At the hearing before me Mr Haywood relied on the grounds submitting that the judge had not dealt with the case argued under paragraph 276B. In relation to the point made by the respondent in the response there was a letter dated 3 March 2015. This had been sent to the Home Office and the Tribunal. Under the heading "Statement of additional grounds" the letter read:
"Our client has instructed us that she has now been in the UK for more than 10 years lawfully and continuously. She believes that she now meets the criteria for a grant of indefinite leave to remain as per paragraph 276B of the Rules."
6. Mr Tarlow pointed out that there was a letter dated 3 March 2015 which was simply a covering letter for the appellant's bundle. However it appears that there was another letter of the same date raising the matters which I have identified. Mr Tarlow submitted that he would need to take instructions as to whether to withdraw the decision under paragraph 276D.
7. It does appear to me on the material that I have that the judge may not have fully appreciated the arguments that the appellant was attempting to advance. The primary focus of the submissions was not Article 8 but the Rules. It may well be that the judge's attention was not drawn to the significance of the letter dated 3 March 2015 or if she had had her attention drawn to it would have assumed that the reference was simply made to the letter accompanying the bundle. The argument does appear to have been advanced under the Rules but it may well be that the Presenting Officer was not fully seized of the point that was being put forward. The statement that the appeal was solely brought under Article 8 does not appear to reflect the case that the appellants were attempting to bring. I make no criticism of the judge for this and it is not clear that the respondent appreciated it either.
8. In the premises it does not appear that the appellants' arguments had the hearing they might have merited and I have come to the conclusion that the only fair outcome in this case is that the matter should be re-determined by the First-tier Tribunal. This will give the respondent the opportunity to consider whether to re-visit the decision under 276B as Mr Tarlow indicated might be the position. Counsel invited me to remit for a fresh hearing without preserving findings of fact and Mr Tarlow did not dissent from the proposition. I note that the First-tier Judge in fact accepted that the appellant had given a largely truthful account subject to some reservations about the appellant's evidence "going to the heart of the issue in this human rights appeal". I agreed that in the circumstances it might be confusing if these aspects resurfaced because of course it is the appellant's position that it was the case under the Rules rather than the human rights aspects which were the focus of the case as it was intended to be brought.
Notice of Decision
9. In the premises I accept that the appeal should be heard as a fresh matter with none of the findings of fact being preserved. The decision of the First-tier Judge was flawed on the basis that I have indicated and the matter is remitted to be heard afresh by a different First-tier Judge.
ANONYMITY
The First-tier Judge made no anonymity order and I make none.
TO THE RESPONDENT
FEE AWARD
The First-tier Judge made no fee award and because the matter is still ongoing I make no fee order.

Signed Date 8 June 2016
G Warr
Judge of the Upper Tribunal