VA/02821/2016

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02821/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 03 October 2016



Before

UPPER TRIBUNAL JUDGE STOREY


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RABHA GHOUAS
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: No appearance


DECISION AND REASONS

1. The respondent (hereafter the claimant) is a national of Algeria. In a decision sent on 16 March 22016 First-tier Tribunal (FtT) Judge Swinnerton allowed her appeal on the basis of being satisfied "that the [claimant] meets the requirements of paragraph 41 of the Immigration Rules". The appellant (hereafter the ECO) has permission to challenge that decision.

2. Prior to the hearing in a letter dated 14 September 2016 the claimant's representatives wrote stating that the claimant no longer intends to participate in the forthcoming appeal as she has acquired French nationality. Had this letter specifically requested me/the Upper Tribunal Judge to treat the appeal as withdrawn, I would have done so on these bare facts. However the letter limited itself to a notification of non-participation and indeed contemplates that I will dismiss the appeal ("We would be grateful if you could notify us once the appeal has been dismissed").

3. Accordingly I proceed to dispose of the appeal. However my decision is to allow the ECO's appeal. It was manifestly wrong of the FtT judge to have allowed the appeal under para 41 of the Rules as he had no jurisdiction to do so. By virtue of changes made to the Nationality, Immigration and Asylum Act 2002 amending s.55A, the only grounds available in visitor cases are human rights or race discrimination.

4. If the judge's reasons had established in substance that the ECO decision was contrary to human rights or anti-discrimination law, I may have still accepted the decision to allow the claimant's appeal as not materially wrong. But the judge failed to address these at all and on the stated facts there was at most sufficient evidence of the existence of family life (the claimant being married to Mr Mustapha Badoioui). There was not sufficient evidence either of an interference with that right or a disproportionate interference. In particular, it had not been established why it would violate Article 8 if the couple were to continue to enjoy family life in France, where the sponsor had visited.

5. Accordingly, the FtT judge materially erred in law.

Notice of Decision

6. For the above reasons:

The FtT materially erred in law.

7. The decision I re-make is to dismiss the claimant's appeal as she has not established that her Article 8 rights would be violated.

No anonymity direction is made.


Signed Date: 30 September 2016

Dr H H Storey
Judge of the Upper Tribunal