Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14289/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3rd August 2016
On 4th August 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
GA BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs HENA FATEMA SYEDA
Claimant/Respondent

NO ANONYMITY ORDER MADE

Representation:

For the Appellant: Mr T Melvin ( Home Office Presenting officer)
For the Respondent: Ms S Mardner ( Counsel instructed by Nasim & Co solicitors)

DECISION AND REASONS

1. The appellant in this error of law matter is the Secretary of State and I shall refer to the parties as " the Secretary of State" and to the appellant in the First-tier Tribunal as the "Claimant".

2. The Secretary of State appeals against a decision made by First-tier Tribunal (Judge Hosie) (FTT) promulgated on 1st December 2015 in which she allowed the Claimant's appeal against a decision to refuse her entry clearance as the spouse of a person settled in the UK outside of the rules under Article 8 ECHR.

3. The FTT allowed the appeal under Article 8 [17-25] having found that there was family life and an interference that was disproportionate having regard to the interests of the family. The FTT accepted that the Claimant had not met the relevant rules as the sponsor was not a settled person in the UK and both he and the Claimant's step children had been granted discretionary leave until 2017. Reference was made to the sponsor as a person who stood to be removed and the children as "qualifying " under section 117B of the 2002 Act as amended. The FTT found evidence that it was in the best interest of the family member to remain in the UK [24].

4. In grounds of application for permission the Secretary of State argued that the FTT erred a) by misdirection of law in its consideration of section 117B 2002 Act as amended and paragraph 276ADE of the Immigration Rules in the light of there being no application made under those provisions and no removal directions made. Further b) the FTT erred in considering the evidence as at the date of hearing rather than at the date of decision which was applicable for entry clearance appeals. The FTT erred by c) assessing the appeal by reference to the removal of the sponsor where that was not in issue and in considering Article 8 proportionality took into account erroneous matters such as Paragraph 276 ADE and section 117B(6), and by taking the view that the sponsor choice of residence in the UK outweighed the right to control borders.

5. Permission was granted on all grounds singularly or cumulatively. It was arguable that the FTT in applying Article 8 approached the matter as if it were a guaranteed right for a couple to choose where they lived and the proportionality assessment was flawed.

6. The Claimant relied on a Rule 24 response arguing that the FTT correctly applied the law in the appeal.

7. At the hearing before me both representatives agreed that the decision and reasons could not be sustained and that the FTT erred in all respects by failing to apply the correct law to the issues under appeal. The sponsor was a not a settled person as he had discretionary leave to remain in the UK and the issues ought to have been considered under Article 8, if justified (SS (Congo) & others), in terms of reasonableness of relocation .

Decision

8. There are material errors in law and I set aside the decision and reasons. I allow the appeal by the Secretary of State on all grounds. I remit the matter for a fresh hearing to the FTT at Hatton Cross (excluding Judge Hosie). There were no findings of fact that could be preserved and given that the errors were entirely with the FTT, I decided that it was fair for the Claimant to have a further hearing before a differently constituted Tribunal .

Signed Date 3.8.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD.

Signed Date 3.8.2016

GA Black
Deputy Judge of the Upper Tribunal