Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/10509/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
on 19th June 2013
on 21st June 2013

Before

LORD BURNS
UPPER TRIBUNAL JUDGE HANSON

Between

MUHAMMAD AKMAL
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Mr Tufan Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Pacey promulgated on the 9th October 2012 in which she found there was no valid appeal before her as the primary purpose of the visit was not to visit family members.

2. We find the Judge erred in law for although referring to evidence from the sponsor it is clear from the application form, paragraphs 8.4, 8.11 and 9, that the primary purpose was for a family visit. Indeed in 8.4 the appellant specifically states that he and the family will stay with his nephew and real sister. In Ajakaiye [2011] UKUT 00375 the Tribunal found that ascertaining the purpose of the visit is primarily achieved by examining what the applicant said in the application form.

3. Judge Pacey noted the evidence from three sources mentioned the family element but found that as it was said he was coming for a holiday first, this must be the primary purpose. We find this a perverse finding. The weight of evidence establishes that the appellant intended to visit the United Kingdom for a holiday during which he will visit family members with whom he will stay. The statement he and his family are coming for a holiday is to distinguish it from his coming for business purposes. The evidence shows a substantial number of previous visits of this nature for which entry clearance was granted.

4. We also note that the refusal dated 19th March 2012 confers a full right of appeal as it was accepted by the Entry Clearance Officer (ECO) that this is an application that fell to be considered under the provisions of paragraph 41 of the Immigration Rules. If Judge Pacey took a point not set out in the refusal and therefore of which the appellant had no notice i.e. jurisdiction, and without giving him the opportunity to make representations on this point, it is also arguable there has been a procedural irregularity sufficient to amount to a material error of law.

5. We set the determination aside as the finding of ‘no jurisdiction’ is wrong in law. This is clearly a family visit. The Tribunal had jurisdiction to determine the appeal and should have done so.

6. We proceed to remake the decision by allowing the appeal. The ECO was concerned that the evidence did not substantiates the appellant’s claimed income and financial situation in Pakistan. We have seen a considerable bundle of documents corroborating his claim as at the date of decision. We also had the pleasure of meeting Mr Akmal who appeared before us having been granted a multi entry business visa by Islamabad valid from 7th March 2013 to 7th March 2018 (VAF Number: 1713496). An ECO must have been satisfied his business credentials were genuine to grant such a visa.

7. Having considered all the evidence we are satisfied that at the date of decision the appellant was able to satisfy all the requirements of paragraph 41 of the Immigration Rules and so allow the appeal. There are related family members who were refused in line in 2012 whose applications should also be allowed if the visit visa is sought, although an ECO may wish to clarify the situation with Mr Akmal in light of the grant of the business visa and passage of time.

Decision

8. The First-tier Tribunal Judge materially erred in law. We set aside the decision of the original Judge. We remake the decision as follows. This appeal is allowed.

Anonymity.

9. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 20th June 2013