Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002091

First-tier Tribunal No: EA/50632/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7th of March 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

ZOI PARASKEVA
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Decided without a hearing on 28 February 2025

DECISION AND REASONS

1. On 28 May 2023 the appellant, a Cypriot national, applied for entry clearance to the United Kingdom as the partner of a British citizen. Her appeal against the refusal of that application was dismissed by the First-tier Tribunal on 14 March 2024. Permission to appeal to the Upper Tribunal was subsequently granted on 10 May 2024, the reasons given by the permission judge including that:
[…] The judge does not appear to have considered the position regarding Article 8 outside of the rules, with reference to S117B. Whilst some of those factors (including her precarious status in the UK) appear to have been considered within the context of exceptional circumstances (Paragraph 11), no balance sheet approach/proportionality assessment has been considered separately. I am persuaded for this reason only that there is an arguable material error of law and I allow permission solely on this basis.
2. On 10 January 2025 I issued directions that included the following:
1. […] On 21 May 2024 the respondent wrote to the Upper Tribunal requesting that the appeal be treated as withdrawn so that entry clearance could be granted. That request was refused by an Upper Tribunal lawyer on 21 May 2024.
2. On 19 June 2024 the respondent then provided a rule 24 Response that conceded an error of law on the basis identified in the Grant of Permission, and requested that the hearing be remitted back to the First-tier Tribunal de novo. It is unclear why there has since been a delay before the file was referred to a Judge.
3. Within 14 days of the date on which these directions are sent, each party must inform the Tribunal whether entry clearance has been granted.
4. If Entry Clearance has not been granted, each party must inform the Tribunal whether they object to the Tribunal allowing the appeal without a hearing, setting the decision aside, and remitting it to the First-tier Tribunal for rehearing.
5. If Entry Clearance has been granted, then the appellant must inform the Tribunal whether the appeal is now withdrawn. If the appeal is not withdrawn, then unless either party objects I propose to:
(a) Formally set the decision aside and remit it to the First-tier Tribunal for rehearing; then
(b) Sitting as a First-tier Tribunal Judge, immediately treat the appeal as withdrawn pursuant to rule 17(2) of the First-tier Procedure Rules on the basis that the decision to which it relates has been withdrawn and there is no good reason not to treat the appeal as withdrawn.
3. Those directions were sent to both parties but there has been no response. While, as a matter of fact it is likely that entry clearance was granted, rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 requires positive notification of that fact from the respondent. That has not yet been provided and the appeal cannot yet be treated as withdrawn.
4. The parties have not objected to the Upper Tribunal deciding the appeal without a hearing, having been given a fair opportunity to do so. I am independently satisfied that the First-tier Tribunal’s decision was made in error of law in the way described by the permission judge and set out above, and would add that the FtT at [11] gives no consideration to the possibility that failure to meet the specified evidence requirements in Appendix FM-SE might not be conclusive of Article 8 proportionality. With some reluctance given the present workload of the First-tier Tribunal, I consider it appropriate to simply set the decision aside and remit the appeal to the First-tier Tribunal. I make a direction below requiring the respondent to clarify the situation.

Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by a different judge.

Direction:
(iii) Pursuant to section 12(3)(b) of the Tribunals, Courts and Enforcement Act 2007, I direct that the respondent must forthwith notify the First-tier Tribunal whether the underlying entry clearance decision is withdrawn.

J Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2025