OA094352014 [2016] UKAITUR OA094352014 (13 July 2016)

OA094352014 [2016] UKAITUR OA094352014 (13 July 2016)

The First-tier Tribunal Judge made material errors of law by making adverse findings on issues not raised in the refusal and failing to consider evidential flexibility; the respondent should have considered exercising discretion to request the missing bank statement, and the decision is not in accordance with the law.

Source-derived case information.

Citation
[2016] UKAITUR OA094352014
Parties
Appellant: F B; Respondent: Entry Clearance Officer
Jurisdiction
United Kingdom
Judgment Date
13 July 2016
Procedural Posture
Immigration Appeal / Appeal Against First Tier Tribunal Decision, Upper Tribunal Determination of Material Error of Law
Outcome
Appeal allowed to the extent that the decision is not in accordance with the law; application remains outstanding for a lawful decision by the respondent.
Legal Topics
Entry Clearance, Appendix FM, Evidential Flexibility, Article 8 ECHR, Procedural Fairness
Immigration Law Entry Clearance Appendix FM Evidential Flexibility Article 8 ECHR Procedural Fairness

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Parties

F B

Appellant

Entry Clearance Officer

Respondent

Procedural Posture

Immigration Appeal / Appeal Against First Tier Tribunal Decision, Upper Tribunal Determination of Material Error of Law

Legal Issues

  1. 1 Whether the First-tier Tribunal Judge made a material error of law in dismissing the appeal based on issues not raised in the refusal decision
  2. 2 Whether the respondent should have exercised discretion under evidential flexibility provisions for missing bank statement
  3. 3 Whether the proportionality assessment under Article 8 was erroneous

Ratio Decidendi

The First-tier Tribunal Judge made material errors of law by making adverse findings on issues not raised in the refusal and failing to consider evidential flexibility; the respondent should have considered exercising discretion to request the missing bank statement, and the decision is not in accordance with the law.

Court Disposition

Appeal allowed to the extent that the decision is not in accordance with the law; application remains outstanding for a lawful decision by the respondent.

Orders

  • Findings of FTTJ in paragraph 8 preserved; remaining findings set aside.
  • Respondent to make a lawful decision on the outstanding application.