Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07854/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 31 August 2016
On 15 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

MR Imran Ali
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mrs R Pettersen, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant in this case is the respondent before the First-tier Tribunal (FTT), i.e. the Secretary of State for the Home Department. I will continue to refer to the respondent thus notwithstanding that she is the appellant before the Upper Tribunal.
2. The respondent appeals to the Upper Tribunal with permission of a Judge of First-tier Tribunal Kimnell. Having reviewed the decision of the FTT Tribunal Judge Cox promulgated on 22 March 2016, who allowed the appeal under the Immigration Rules in respect of a spouse application, Judge of First-tier Tribunal Kimnell found it at least arguable that the judge had failed to give any reasons for his finding that the applicant met the requirements of Appendix FM. According to paragraph 3 of the decision the ECO was satisfied the appellant met the requirements of Appendix FM but neither the notice of decision nor ECM review contained any such concession. The respondent's decision was therefore based solely under paragraph 320(11) of the Immigration Rules which allowed the Immigration Judge to peremptorily refuse settlement under the relevant Rules on the basis that the appellant had "contrived in a significant way to frustrate the Immigration Rules by overstaying, absconding or not meeting a reporting restriction or making of a frivolous application". The respondent also rejected any human rights application under Article 8 of the ECHR. Judge of First-tier Tribunal Kimnell noted that the finding of the Immigration Judge that the appellant met the requirements of the Rules consisted of "one line" with no reasoning.
The Hearing
3. At the hearing Mrs Pettersen, a Home Office Presenting Office explained that whilst the respondent had not challenged the decision of the Immigration Judge under paragraph 320(11) of the Immigration Rules her grounds did take issue with the finding that on the totality of the evidence he was satisfied at the date of the decision that the appellant met all the requirements of the Immigration Rules. The respondent noted the absence of any finding in respect of the requirements of the Immigration Rules being met and criticised the Immigration Judge for giving no or no adequate reasons for a material part of his decision. The closest the Immigration Judge came to making a clear finding was at paragraph 19, where he noted that the respondent did not appear to have taken into account the appellant's family life with the sponsor. The Immigration Judge went on to make a further finding at paragraph 20 that the sponsor had indicated that she was working very hard to ensure that she met all the financial requirements of the Rules. This was not adequate reasoning.
4. Accordingly, Mrs Pettersen maintained that the application for entry clearance ought to be remitted to the respondent for him to make a fresh decision on the merits, as the ECO had determined the application peremptorily without consideration of the merits, because he considered the application qualified for refusal on the grounds that the appellant had contrived to frustrate the requirements of the Immigration Rules. I noted that the ECO had also made findings under Article 8 but Mrs Pettersen thought the decision of the ECO adequately dealt with that and she noted that there was no cross appeal. There was no cross appeal before me on behalf of the appellant.
Findings
5. Having carefully considered the grounds put forward by the respondent upon which permission has been given and heard the submissions by Mrs Pettersen I agree that the decision of the FTT does not contain any or any adequate reasoning for the decision that the appellant met the requirements of the Immigration Rules and specifically Appendix FM. Appendix FM contains detailed requirements before settlement into the UK which ought to have been gone through.
6. No challenge is made to the finding in relation to the ECHR.
7. Mrs Pettersen urged on the Tribunal an order that the matter be remitted back to the ECO for further consideration. She indicated it was likely that the ECO would request further information before reaching a decision. I consider that to be the correct course having regard to the fact that the FTT made no reasoned decision on this important aspect of the case.
Notice of Decision
A material error of law is found in the decision of the FTT. I remit the matter to the ECO for a fresh decision on whether the requirements of Appendix FM were met at the date of the decision.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury 15 September 2016

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury 15 September 2016