Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA418542014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 14 June 2016
On: 15 June 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

md saif uddin
Respondent

Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr P Turner, instructed through Direct Access

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department ("SSHD") against a decision of First-tier Tribunal Judge Moore allowing Mr Uddin's appeal, to a limited extent, against the respondent's decision to remove him and his family from the UK following the refusal of his human rights claim.

2. For the purposes of this decision, I shall refer to the Secretary of State as the respondent and Mr Uddin as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a national of Bangladesh born on 26 October 1968. He arrived in the United Kingdom in May 2005 on a student visa valid until October 2007 and was subsequently granted further periods of leave as a student and then as a Tier 1 (Post Study Work) Migrant, until 29 October 2010. His wife and eldest child arrived in the UK in March 2007 as his dependants and were granted further leave in line as dependants. The appellant's application to extend his leave as a Tier 1 (General) Migrant was refused in January 2011 and an application made on 8 February 2011 outside the immigration rules was refused on 2 March 2011.

4. On 23 June 2011 the appellant requested a reconsideration of his application for leave to remain, on human rights grounds. That application was refused on 2 October 2014, by which time the appellant had three children.

5. The respondent, in her decision of 2 October 2014, considered that the appellant could not meet the criteria in Appendix FM either as a partner or a parent, and that he could not meet the criteria in paragraph 276ADE on the basis of his private life. The respondent considered that there were no exceptional circumstances justifying a grant of leave outside the immigration rules on wider Article 8 grounds, nor that the appellant had made out a claim under Article 3 on the basis of medical issues.

6. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Judge Moore on 23 September 2015. Judge Moore concluded that the respondent had wrongly made the decision under the new immigration rules, whereas the old Article 8 positon should have been applied, and that there had been a failure to undertake a full and proper assessment under section 55 of the UK Borders, Citizenship and Immigration Act 2009. He decided that the matter should be remitted to the respondent for a proper Article 8 assessment in line with the principles in Razgar, R (on the Application of) v. SSHD [2004] UKHL 27 and for the best interests of the children to be properly assessed. He allowed the appeal on that limited basis.

7. Permission to appeal was sought by the respondent on the grounds that the judge had failed to consider that the appellant and his family had had no lawful basis of stay since October 2010; had erred by considering that the new immigration rules were not applicable; had failed to give reasons for finding that there were significant obstacles to integration in Bangladesh; and had failed to determine the appellants' Article 8 ground of appeal rather than remitting the case to the Secretary of State.

8. Permission to appeal was granted on 18 May 2016.

9. At the hearing both parties agreed that the judge had made a material error of law in regard to the application of the new rules. Mr Turner asked that I either re-make the appeal by allowing it outright or remit the matter to the First-tier Tribunal. Mr Wilding submitted that, since no findings of fact had been made by the judge, the appropriate course would be for the case to be remitted to the First-tier Tribunal for a de novo hearing.

10. I set aside Judge Moore's decision on the basis that he had made a material error in considering that the new immigration rules did not apply. That was plainly inconsistent with the decision in Singh v The Secretary of State for the Home Department [2015] EWCA Civ 74. He had also erred by purporting to remit the case to the Secretary of State and he clearly ought to have determined the grounds of appeal himself.

11. I was minded to go on to re-make the decision myself. However, I was persuaded by the fact that both parties were in agreement that a remittal to the First-tier Tribunal was the more appropriate course, particularly as no findings of fact had been made by the judge and that, as Mr Turner submitted, there would be further evidence in regard to the family's medical issues and the best interests of the children.

DECISION

12. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside in its entirety. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Moore.

Signed

Upper Tribunal Judge Kebede

Date 15th June 2016