PA/00035/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00035/2015



THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 6 July 2016
On 5 October 2016


Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE PERKINS



Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and


[A J]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr Walker, Senior Home Office Presenting Officer.
For the Respondent: Ms K McCarthy, instructed by Irving & Co. Solicitors.


DETERMINATION AND REASONS

1. The Respondent, whom we shall call "the claimant", is subject to a deportation decision made on 31 March 2015. He gave notice of appeal to the First-tier Tribunal under s. 82(1) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014), as the decision letter invited him to do. His arguments were successful before Judge Bird, who issued a determination allowing his appeal.
2. The Secretary of State sought and obtained permission to appeal to this Tribunal on grounds based on an assertion that Judge Bird had failed properly to apply the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31. We heard submissions on 6 July 2016. During the course of them it was drawn to the attention of the parties that the decision under appeal appeared to fall within the 'Nkomo gap' (Nkomo v SSHD [2016] UKUT 285 (IAC)). We allowed the parties seven days to make any submissions persuading us that there was a right of appeal to the First-tier Tribunal in this case.

3. No such submissions have been made. In this case, as in Nkomo and for the same reasons, the Secretary of State failed to make a decision carrying a right of appeal at the time it was made. No doubt she will wish to put the matter right now, and Mr Walker indicated as much at the hearing. For the present, however, our decision has to be that Judge Bird erred in determining the appeal. We set her decision aside and substitute a decision dismissing the claimant's appeal for want of jurisdiction.







C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 30 September 2016