Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/08664/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 March 2017
On 7 April 2017
Prepared 13 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Entry Clearance Officer - chennai
Appellant
and

PREVEEN VEJANDLA
(ANONYMITY DIRECTION not Made)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Presenting Officer
For the Respondent: Mr S Bellara, Counsel instructed by Legend Solicitors

DECISION AND REASONS
1. In this decision the Appellant is referred to as the ECO and the Respondent is referred to as the Claimant.
2. The Claimant, a national of India, date of birth 25 August 1989, appeals against the ECO’s decision to refuse entry clearance on 23 April 2015 as a Tier 2 (Minister of Religion) Partner with reference to paragraph 319C of the Immigration Rules HC 395, as amended (The Rules) and paragraph 320(11) of the Rules.
3. The appeal against that decision came before First-tier Tribunal Judge Fletcher-Hill who, in a decision promulgated on 28 September 2016, allowed the Claimant’s appeal under the Immigration Rules.
4. The Claimant sent in to the ECO, which were before the judge, representations in particular a letter, dated 30 March 2015, in which the Claimant set out the history of his application and stated as follows:
“I left the United Kingdom voluntarily without the expense of the Secretary of State. I conceded that I overstayed in the United Kingdom and my prior application was also refused due to deception. I really apologise for the mistakes which I committed previously and now I confirmed that I will honour all the values of the United Kingdom Immigration Rules.
I know my wife since 2011 while I was in the UK. Although I know her since 2011, we start having an affair from 2012 onwards. Our parents agreed for our marriage and we solemnised our marriage on 24 January 2015.”
The letter continues on other matters.
5. The position therefore as Mr Bellara reasonably accepts is that the Claimant was effectively accepting the past use of deception for whatever reasons: Although they are not enlarged upon. Thus there was a sustainable basis for the ECO, even if there was no right of appeal at the time, to make a decision with reference to paragraph 320(11) of the Immigration Rules. In the judge’s brief decision on this matter the judge set out the basis of the ECO’s refusal under paragraph 320(11) of the Rules in 2011. However the Judge’s decision essentially centres and focuses on the Claimant’s wife as an honest and credible witness and concludes that they will comply by departing at the conclusion of her period of time in the UK. The judge said at paragraph 29, and this is the only point in the reasoning:
“On the totality of the evidence before me, I find, on a balance of probabilities, that the Appellant has now discharged the burden of proof and the reasons given by the Respondent do not justify the refusal under the Immigration Rules. Therefore the Respondent’s decision is not in accordance with the law and the applicable Immigration Rules.”
6. It seems to me that the Judge really does not get to grips with the basis of the earlier refusal and the decision on deception nor does the judge explain, even allowing for an exercise of discretion, how she balances that issue with the positive finding she makes about the Claimant’s wife. It is, I think, ultimately a lack of adequate and sufficient reasons to address the ECO’s basis of concern. This is not to say there could not have been a positive decision on the outcome but if so the reasoning was going to have to be properly explained. Accordingly, I find that there has been an error of law because the issue of paragraph 320(11) of the Rules has not been properly addressed and will need to be re-made.

DECISION
The Original Tribunal decision can not stand. The appeal will have to be remade in

DIRECTIONS
1. The matter will be sent to Taylor House. Not before F-t T Judge Fletcher-Hill.
2. Time estimate – one hour.
3. No interpreter required.
4. The findings of fact to stand. The single issue will be the exercise of discretion, having regard to the earlier decision with reference to paragraph 320(11) of the Immigration Rules.
No anonymity direction is made.

Signed Date 24 March 2017
Deputy Upper Tribunal Judge Davey