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The Applicant's appeal against refusal to vary her leave and removal was heard before First-tier Tribunal Judge Phull on 22 nd July 2015. In a decision promulgated on 13 th August 2015 the appeal was dismissed under the Immigration Rules but allowed under Article 8 ECHR. The Secretary of State applied for permission to appeal to this Tribunal against the judge's decision.
Finally Mr Mills said that the judge had not considered in substance Section 117B of the Nationality, Immigration and Asylum Act 2002. She commented at paragraph 24 that she had had regard to the Section but she had not actually addressed it. Section 117B(5) indicated that little weight should be given to private life where leave was precarious. The judge had not considered that. It had come down to the judge having sympathy for the Applicant and thinking that she deserved to stay but that was not sufficient.
As to Section 117B of the Rules Miss Norman said that the judge had considered that section but she did not have to consider each and every step. Finally Mr Mills said in response that there was a lack of reasoning as to why family life was engaged. If the matter turned only on private life little weight could be given to it. The ultimate reasoning was simply that the Applicant was a victim of domestic violence.
I found there was force in the submission that if the judge found that the decision was not in accordance with the law by virtue of failure to consider the best interests of the cousin's children then it was inappropriate to go on to consider proportionality. On the basis of the information which was before the Secretary of State the judge's finding in that regard does not however appear to have been well-founded as the Secretary of State did consider the best interests of the children at paragraph 30 of the refusal letter.
The making of the decision by the First-tier Tribunal involved the making of a material error of law and that decision is set aside. The appeal is remitted for rehearing in accordance with the directions below.
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