Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA427212014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 21st April 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr harbhajan singh
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Hoare (Solicitor)
For the Respondent: Mr D Mills (HOPO)

DETERMINATION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Moan, promulgated on 26th May 2015, following a hearing at Birmingham on 14th May 2015. In the determination, the judge allowed the appeal of the Appellant to the extent that it was remitted back to the Secretary of State to be reconsidered in accordance with the law. The Respondent Secretary of State, applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of India, who was born on 3rd August 1965. He appealed against the decision of the Respondent Secretary of State rejecting his application to remain in the UK under Tier 2 (Minister of Religion) visa. This was because the Appellant could not meet the English language requirement and so under paragraph 245HD(b)(i), the application was dismissed. The date of decision is 2nd December 2012. In this appeal, the Appellant argued that the Secretary of State had only considered Tier 2 requirements and not the wider issues concerning Article 8 of the ECHR with respect to compassionate circumstances.
The Judge's Findings
3. The judge had observed how there was no evidence from the Respondent Secretary of State that confirmed that a decision outside the Immigration Rules had been considered, as requested by the Appellant. The judge referred to the fact that,
"There were considerations such as the Appellant's work in the mosque (sic) and evidence from his supporters. The effect of the removal of the Appellant from the UK upon the local community or upon the Appellant had not been taken into account and his proportionality assessed" (paragraph 18).
The judge referred to the fact that the case of Zermani [2015] EWHC 1226 confirmed that the Secretary of State should consider whether to grant leave outside the Immigration Rules in an application for leave to remain.
4. The judge ruled that the Secretary of State should consider her decision afresh in particular with respect to those matters which do not figure in her original decision.
Grounds of Application
5. The grounds of application state that the judge erred in remitting the case to the Respondent Secretary of State to consider the Appellant's Tier 2 application under Article 8 ECHR when the Appellant was served with the human rights refusal letter by the Home Office on 29th September 2001 when he was in immigration detention.
6. On 17th September 2015, permission to appeal was granted by the Upper Tribunal, on the basis that the Appellant had already been served with a decision to address his human rights under Article 8 ECHR, and that in any event the judge ought not to have considered any Article 8 grounds herself without the need to remit the matter.
7. A Rule 24 response was entered on 8th October 2015.

Submissions
8. At the hearing before me on 21st April 2016, Mr Mills, appearing on behalf of the Respondent Secretary of State, stated that he had taken the opportunity of speaking with Mr Hoare, for the Appellant, and would like to withdraw the appeal. This is because the Appellant was a religious worker. He had been refused further leave in 2012. He lodged an appeal against that refusal but the Tribunal authorities mislaid the appeal and claimed not to have received it. So the Appellant was detained in 2014. He then lodged a judicial review, which was dismissed, but the Appellant was then released from detention and a letter of 29th September 2014 was written to his then solicitors in Leicester, Jasvir Jutla & Co (Solicitors) then after the new solicitors took over the case they established that there had been an in-time appeal on 14th May 2015 which had gone before the judge and it was argued that there was a clear human rights issue that had to be dealt with. The 2012 refusal letter did not deal with the human rights issue at all. The judge accepted this was the case. The Home Office Presenting Officer agreed that this had not been done. He agreed that the matter should return back to the Secretary of State for a decision on the human rights issues. However, there had been a refusal letter in September 2014 which did consider, eight months prior to the hearing before the judge, the human rights issues, but Mr Hoare and his firm had not been sent this refusal letter, and the Tribunal did not have it, and the Home Office Presenting Officer did not raise it before the Tribunal either. In the circumstances Mr Mills submitted that he would have to accept that the matter should return back to the Respondent Secretary of State for a decision on the human rights issues as originally ruled by Judge Moan.
9. For his part, Mr Hoare submitted that he would rely upon his Rule 24 response and would agree that this was the only sensible course of action.
No Error of Law
10. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision, for precisely the reasons put before me by Mr Mills.
Decision
11. There is no material error of law in the original judge's decision. The determination shall stand.
12. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016