(Immigration and Asylum Chamber) Appeal Numbers: IA/11730/2013
THE IMMIGRATION ACTS
Heard at Field House
On 3 December 2013
On 9 December 2013
UPPER TRIBUNAL JUDGE MOULDEN
THE SECRETARY STATE FOR THE HOME DEPARTMENT
MRS RIDMIKA DULARI ARAWWALAGE
MR THUSHARA SAMAN KUMARA RANHALUGE
(Anonymity direction not made)
For the Appellant: Mr N Bramble a Senior Home Office Presenting Officer
For the Respondents: Miss A Nizami of counsel instructed Sahida & Co Legal Services
DECISION AND DIRECTIONS
1. The appellant is the Secretary of State for the Home Department. I will refer to her as the Secretary of State. The respondents are citizens of Sri Lanka and husband-and-wife. She was born on 14 July 1979 and he on 13 August 1977. I will refer to them as the claimants. The Secretary of State has been given permission to appeal the determination of First-Tier Tribunal Judge V A Cox ("the FTTJ") who allowed the claimants’ appeals against the Secretary of State's decisions of 27 March 2013 to refuse the wife leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-based System and for a Biometric Residence Permit and to refuse the husband leave to remain as her dependant. The Secretary of State also gave directions for their removal from the UK under the provisions of Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. I heard the Secretary of State's appeal against the FTTJ's decision on 17 October 2013. On 18 October 2013 I issued a Decision and Directions which is annexed to this determination. It should be read with this determination, preferably first. I will not repeat what I said there.
3. Mr Bramble informed me that the Secretary of State had not complied with my directions. Clearly he has made repeated efforts to get the appropriate department to consider and reach a decision on the correction letter starting soon after the hearing on 17 October and culminating with the manager of the appropriate department telling him this morning that they would look for the file. I have been given copies of Mr Bramble's memo and e-mails. Telephone calls have not been returned or e-mails answered. Mr Bramble accepted that the directions had given the Secretary of State ample time to deal with the correction letter and to make a decision.
4. Miss Nizami submitted that the Secretary of State had provided no basis on which to challenge the correction letter. I was asked to uphold the decision made by the FTTJ by remaking it and allowing the appeal. The claimants were privately funding the appeal and absent any prior notification from the Secretary of State as to what the position would be at the hearing today they had to instruct counsel to attend on their behalf.
5. The only basis on which I found that the FTTJ erred in law and set aside her decision was because, when dealing with a paper case, she had not adjourned to give the Secretary of State the opportunity to consider the correction letter. That opportunity has now been given. Mr Bramble accepted that there was sufficient time for the Secretary of State to consider and react to the correction letter. She has not done so and has not given any good reason for failing to do so. At the hearing on 17 October I indicated to Mr Bramble that I would be reluctant to grant a further adjournment unless the Secretary of State could show a compelling reason for doing so. She has not.
6. There has been no criticism of the FTTJ's decision to allow the appeals against the Section 47 removal directions. The only criticism of her decision to allow the appeals under the Immigration Rules was in relation to procedural unfairness. The Secretary of State has now had the opportunity to show that the procedural unfairness would have made a difference to the conclusion, for example if the correction letter was disputed in any way, but has failed to do so. Having set aside the decision of the FTTJ I remake it and conclude that for the reasons she gave the claimants have established that they met the requirements of the Immigration Rules.
7. I allow the claimants’ appeals.
Signed:........................................ Date: 4 December 2013
Upper Tribunal Judge Moulden
DECISION AND DIRECTIONS
No later than 28 November 2013 the Secretary of State is to consider the correction letter and inform the Upper Tribunal and the claimant's representatives whether she maintains her decisions and if so on what basis