Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04416/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 14 December 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Meilin Huang
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr R Demello, Counsel, instructed by David Tang & Co

NOTICE OF INVALID APPEAL AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Herbert promulgated on 28 September 2016 in which he allowed the appeal of Mr Meilin Huang against a decision of the Secretary of State made on 4 April 2016 to revoke his indefinite leave to remain in the United Kingdom. The judge concluded that there was a right of appeal against that despite submissions to the contrary being made by the Secretary of State's representative at the appeal.
2. There is a long history to this appeal, which is set out in significant detail in the immigration history and in the respondent's case as an appellant's claim as summarised by Judge Herbert. Neither party has submitted to me that that is incorrect or inaccurate and in the circumstances of the issue in front of me, that is whether or not the Judge of the First-tier Tribunal had jurisdiction to entertain the appeal, there is no need to rehearse it at this point.
3. It does, however, require it just to be briefly mentioned that this matter had previously resulted in an application for judicial review which was determined by Mr Justice Collins in November 2015.
4. The question which arises in this case is whether, as Judge Herbert concluded, there was a right of appeal to the Tribunal or not. The question of whether there is a right of appeal is dependent upon Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended. It is not contended that this case invokes anything other than the possibility of the Secretary of State having decided to refuse a human rights claim made by the applicant. That is a decision within Section 82(1)(b) of the 2002 Act.
5. This requires, in my view, first for a human rights claim to have been made and second for that to have been refused. I am not satisfied within this case that there has been any human rights claim refused. There does not for that matter appear to have been a human rights claim made. Mr Demello made no submissions to that effect and, having examined the papers for myself that were put before the First-tier Tribunal, I am unable to conclude that there was any operative human rights claim made.
6. Further, the terms of the decision made by the Secretary of State are clearly to revoke a grant of indefinite leave to remain made earlier. I do not consider that that decision could in any way be construed as a refusal to make a human rights claim. It is clearly headed as "notice of a decision to revoke leave" and the applicant is advised that he may be removed. It is also note that he is being given the opportunity to make a relevant application, that is,a human rights application.
7. In the circumstances I am satisfied that this decision, which also includes details as to how the applicant should state how he wishes to stay in the United Kingdom including inviting him to make an application on the relevant form, that the notice in question is not a refusal of a human rights claim. Accordingly, there is no immigration decision in this case and accordingly the First-tier Tribunal did not have jurisdiction to consider the appeal.
8. It follows, therefore, that the decision of the First-tier Tribunal did involve the making of an error of law in that it proceeded on the basis that it had jurisdiction when it did not. I therefore set it aside and substitute a decision that there is no valid appeal.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law in that it wrongly concluded that it had jurisdiction to determine the appeal. I set it aside
2. I substitute a decision that there is no valid appeal.

Signed Date: 13 December 2016

Upper Tribunal Judge Rintoul