IA030222013

The appellant is a citizen of Mauritius who appealed against a decision of the respondent refusing him indefinite leave to remain in the United Kingdom outside of the Immigration Rules. His application was refused. Following a hearing on 26 April 2013 Judge of the First-tier Tribunal Kanagaratnam dismissed the appellant�s subsequent appeal. In so doing he carried out a balancing exercise when considering whether the respondent�s decision would lead to a breach of the appellant�s Article 8 ECHR rights and concluded that it would not.

Permission to appeal to the Upper Tribunal was granted by Judge of the First-tier Tribunal Grant-Hutchison who decided that the judge failed to consider the respondent�s decision to remove the appellant under Section 47 of the Immigration, Asylum and Nationality Act 2006 in light of the authority of SSHD v Adamally & Jafferi UKUT 414 IAC .

The grounds though also complained that the judge made two further errors and in particular in recording that the appellant had resided in the United Kingdom only �for a mere period of three years� when the reality is that it has been nine years. Further, that the balancing exercise of the judge is inadequate.

In opposing the grounds seeking permission to appeal Mr Deller contended that some of the errors were not material but acknowledged that if the balancing exercise has been effected on a mistaken fact as to the length of time the appellant has been in the United Kingdom, then there are serious concerns regarding the determination.

We find in particular that the error in relation to the period of time the appellant has been resident in the United Kingdom is such as to infect the whole of the judge�s Article 8 balancing exercise. We also find it to be both defective and inadequate when considering the issue of proportionality and that there has been a failure to weigh all the factors in favour and against the respondent�s decision before reaching a conclusion.