OA/11314/2012

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11314/2012


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 10 June 2014
On 11 June 2014




Before

UPPER TRIBUNAL JUDGE ESHUN

Between

MR FEISAL MOHAMMED AWEIS OMAR

Appellant
and

ENTRY CLEARANCE OFFICER, NAIROBI
Respondent


Representation:

For the Appellant: Ms G Loughran, Counsel
For the Respondent: Ms J Isherwood, HOPO


DECISION ON ERROR OF LAW


1. The appellant's appeal has been remitted to the Upper Tribunal by the Court of Appeal for a full determination of the appellant's appeal under Article 8 of the ECHR. The error of law agreed to by the Court of Appeal is set out in the concluding paragraph in the Statement of Reasons. It states the parties were in agreement that the UT made a material error of law in failing to consider or determine the appellant's appeal on Article 8 grounds. This was in issue before the FtT but the FtTJ did not make any findings on it either because she allowed the appeal under the Immigration Rules. The UT substituted its decision for the FtT determination, but the UT determination did not demonstrate that any consideration was given to the Article 8 issues.

2. As the appellant's appeal under Article 8 was not determined by the First-tier Judge, it is appropriate to remit this appeal to the First-tier Tribunal for a full determination of the Article 8 issues. Counsel said she was not running the English language requirement as a separate issue but would incorporate it as part of the considerations under Article 8.

3. First-tier Tribunal Judge Thew found at paragraph 21 that there was no dispute that the sponsor was in a position to provide adequate accommodation. At paragraph 35 she was satisfied that the appellant and the sponsor would be able to maintain themselves and their son adequately without recourse to public funds. These findings shall stand.






Signed Date: 10 June 2014
Upper Tribunal Judge Eshun




DIRECTIONS

The appeal is to be reheard at Taylor House by a FtTJ other than FtTJ Thew

Date of Hearing - 14 October 2014

Time estimate - 2 hours

Sponsor is the only witness

No interpreter required.