IA029312015

This is an appeal brought by the Secretary of State in relation to a decision promulgated on 12 October 2015 by First-tier Tribunal Judge Clarke. That decision arose out of an appeal brought by the then appellant, Akram Pasha Shaikh, a national of India, concerning leave to be in the United Kingdom as a Tier 4 (General) Student. The First-tier Tribunal Judge carefully considered the particular circumstances of the case (which I need not relate for the purposes of this appeal) and concluded at paragraph 19:

"I find that what should have happened in the Appellant's case is that the Respondent [ie the Home Secretary], in accordance with her own policy, should have issued the Appellant with a 60 day letter. There is no evidence before me that a 60 day letter was sent to the appellant once his CAS had been cancelled. It follows that I find that the impugned decision is not in accordance with the law. I allow the appeal to the limited extent that the case should be remitted back to the Respondent for a 60 day letter to be issued in accordance with my findings."

The single error of law pursued by the Secretary of State, and in relation to which permission was granted, was that Home Office records show that the then appellant departed the United Kingdom voluntarily on 28 July 2015 (I take no point on the fact that the grounds say 23 July) and the Tribunal was unaware of this at the time of the hearing.

Reliance was placed upon sub-section 104(4) of the Nationality, Immigration and Asylum Act 2002. Sub-section 104(4) is no longer reproduced in the standard text, Phelan & Gillespie, Immigration Law Handbook (9th edition, 2015) because it is no longer in force. It had read as follows:

"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom."