Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/18091/2012

THE IMMIGRATION ACTS

Determined at Field House without a hearing
Determination Promulgated
On 6 June 2013
On 6 June 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

VASEELA NASHATH TUAN SHERIFFDEEN
(NO ANONYMITY ORDER MADE)
Appellant

and

ENTRY CLEARANCE OFFICER, CHENNAI

Respondent

DETERMINATION AND REASONS

1. The respondent appeals with permission against the determination of the First-tier Tribunal Judge Archer, promulgated on 12 November 2012 dismissing the appellant’s appeal against the decision of the respondent made on 17 April 2012 to refuse to grant her entry clearance. Permission to appeal to the Upper Tribunal was granted on 4 December 2012 by First-tier Tribunal Judge Cruthers.

2. The matter then came before me on 16 January 2013 when I gave the following directions:-

1. Standard directions required the appellant in these proceedings to serve within 21 days, and the respondent in these proceedings within 28 days: a skeleton argument unless relying solely on the grounds of appeal; and, any further evidence not before the FtT on which it is intended to rely, accompanied by the notice required under rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The directions also required the respondent in these proceedings to file within 28 days, any response to the notice of appeal pursuant to rule 24 of the rules.

2. It is my preliminary view that, as is set out in the grounds of appeal [5 to 9] that the First-tier Tribunal Judge erred in his implicit assessment [23] that the available accommodation would be overcrowded, given that for the purposes of assessing statutory overcrowding on the spaces basis. Children under 10 count as ½ and children under 1 do not count at all – see sections 324 to 326 of the Housing Act 1985. Hence, if two adults and the younger child ( under 1) occupied one room, and the appellant, grandmother and the sponsor’s older child occupied another room, there would be no statutory overcrowding on either the space or room standard, children under 10 not counting for the latter standard.

3. Accordingly, as the sole issue on which the appeal was dismissed was the adequacy of accommodation, unless within five working days from the issue of these directions I receive written submissions setting out cogent arguments to the contrary, I propose to allow the appeal without an oral hearing.

3. These directions were not, however issued until 28 May 2013, owing to an administrative error. There has been no response to these directions. Accordingly, I am satisfied that neither party objects to the matter being determined without a hearing and has nothing further to say. I am satisfied that, for the reasons set out in the grounds of appeal, that the determination of the First-tier Tribunal did involve the making of an error of law and requires to be remade insofar as the issue of the adequacy of accommodation is concerned. The other findings in favour of the appellant are preserved

4. I am satisfied for the reasons given above that the accommodation that would be available would not be statutorily overcrowded or otherwise inadequate. I therefore find that the requirements of the immigration rules are met and I allow the appeal on that basis.

Summary of conclusions

1. The determination of the First-tier Tribunal did involve the making of an error of law and I set it aside.
2. I allow the appeal under the immigration rules.

Signed Date: 6 June 2013

Judge of the Upper Tribunal
TO THE RESPONDENT
FEE ORDER

Note: this does not form part of the determination.

As I have allowed the appeal, I have considered making a fee order in favour of the appellant. I consider that, as the appeal has been allowed primarily on the basis of evidence already before the respondent, that it is appropriate to make a full fee order in favour of the appellant of any fee paid.

Signed Date: 6 June 2013

Judge of the Upper Tribunal