Tier1 case law and clarity of judge's decision

Tier1 case law and clarity of judge's decision

An appeal cannot be allowed simply because some findings of fact are made in favour of the appellant if those findings do not entitle him for leave to remain in accordance with Immigration Rules

Mushtaq (clarity of judge's decision) Pakistan [2011] UKUT 122 (IAC) (28 March 2011)

This case was heard on 8th March 2011 at the Upper Tribunal at Field House.

The appellant appealed against the Immigration Judges decision which was unclear. At the end of her determination, the Immigration Judge concluded I allow the appeal to the extent identified above'. It was unsure as to whether the appeal was allowed in part or whether, on proper construction of her determination, she had in fact, dismissed the appeal. A potential issue arose as to whether the appellant could appeal against the determination.

Facts of the case

The appellant appealed against the decision of the respondent (Secretary of State for the Home Department). The appellant had applied for leave to remain in the UK under the Tier 1 General migrant category of the points-based system. The respondent refused to award the points claimed under the previous earnings category (under Appendix A of the Statement of Changes in the Immigration Rules HC 395 (as amended). The appellant had sought to claim 40 points for previous earnings for the relevant period of assessment (between 35,000 and 39,000). The respondent was also not satisfied that the appellant could be awarded 5 points in respect of UK experience. The respondent refused the application under paragraph 245C (c) of the Immigration Rules.

In her determination, the Judge stated that it was not reasonably possible to tell the income from the invoices and that she considered that the income proven was 31,848.27, which she said entitled him to 30 points under Appendix A'. The Judge then concluded her determination as above.

Permission to appeal against the decision was granted on 14th December 2010 by Senior Immigration Judge Poole on the basis that there were substantive grounds challenging the assessment of the documentary evidence and the possibility that the appellant's right to appeal against the determination which had been allowed' was restricted.

Conclusion

The Upper Tribunal concluded that the Immigration Judge had not allowed the appeal at all. In order to be able to succeed, the appellant needed to demonstrate that he should be awarded the 40 points for previous earnings and 5 points in respect of UK earnings. The Tribunal held that On any view, it cannot be said that he had won his appeal to some extent, however limited'. Further, it was wrong for the Immigration Judge to allow the appellants appeal simply on the basis that some of the findings were in his favour as those findings did not entitle him to further leave to remain in the UK under the Tier 1 general route. The Immigration Rules provide a certain number of points must be accumulated in order to qualify and therefore, as the appellant had not obtained the requisite points, he did not satisfy the Immigration Rules.

The Tribunal held that upon a true construction of the determination, it was apparent that the appeal was dismissed and the Immigration Judge should have stated this at the end of her determination. Also, there was no question of whether the appellant had the right to appeal upon properly construing the determination. It was held that The error of the Immigration Judge in describing her decision as a decision to allow the appeal to some limited extent could not deprive the Appellant of the right he had (on a true construction of the determination) to appeal against her determination'. The previous determination was set aside and a new decision was re made allowing the appellants appeal against the respondents decision.

April 2011

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