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The Secretary of State appeals with permission against a decision of First-tier Tribunal Judge Pacey to allow the appeal of the Respondent (previously the Second Appellant) against refusal of entry clearance as a family visitor. On the same occasion (and in the same decision) the judge allowed the appeal of his mother. There is no appeal against that decision.
At the hearing before me there was no attendance by or on behalf of the Respondent when the appeal was called on for hearing at 11.40am. I noted from the file that notice of hearing had been sent both to the Respondent and to the Sponsor (who had given evidence at the hearing before the First-tier Tribunal) by letter dated 12 th January 2015. I considered the matter in the light of Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and decided that it was in the interests of justice to proceed with the hearing.
Mr Mills on behalf of the Appellant Secretary of State said that neither of the limited Grounds of Appeal which had been available to the Respondent had been pleaded in the Notice of Appeal. There had been a material error of law on the part of the judge as she had no jurisdiction to allow the appeal.
I noted that in her decision although the judge had expressly referred to the fact that the Respondent had only limited Grounds of Appeal she gave no basis for allowing the appeal having regard to those limited rights. There is nothing in the documents to indicate that human rights or racial discrimination grounds had been relied upon. In those circumstances I set aside the judge�s decision and substitute a decision that the appeal by the Respondent stands dismissed. The fee award which was made by Judge Pacey in favour of the Respondent also necessarily falls away.
The decision of the First-tier Tribunal contained a material error on a point of law. I have set aside that decision. I have remade the decision and for the reasons stated above the appeal of the Appellant Secretary of State is successful and therefore the appeal by the Respondent against the refusal of entry clearance is dismissed.
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