IA126202014

In this decision the Appellant is referred to as the Secretary of State and the Respondent as the Claimant.

The Claimant, a national of the People's Republic of China, date of birth 23 October 1967, appealed against the Respondent's decision to refuse an application made on 7 February 2013 for indefinite leave to remain as a Tier 1 (Highly Skilled) Migrant in the UK under the Points-Based System. The appeal came to be heard before First-tier Tribunal Judge Telford (the Judge) who, on 9 February 2015, allowed the appeal under paragraph 276B of the Immigration Rules HC 395 (as amended) (the Rules).

I preferred the decision in Ukus for from a plain reading of the Rules it can be seen from the Notice of Immigration Decision and the Reasons for Refusal Letter, dated 10 January 2014, the Secretary of State had not actually addressed the issue of the exercise of discretion but rejected the application on what has been found in fact to be erroneous grounds in relation to other matters. On the findings of fact made by the Judge the Claimant did meet the primary requirement to succeed under paragraph 276B.

It seemed to me there is further force in the point that, since paragraph 276B of the Rules had never been considered by the Secretary of State, the public interest issues which arise under paragraph 276B(ii) need to be addressed by her.

The fact that there may have been many months between the date when the Section 120 notice and its particulars were served on the Secretary of State was, if I may put it this way, a merits point rather than creating any time bar to the Secretary of State being entitled to exercise the primary discretion of which she was seized under the Rules. For these reasons I therefore find the Original Tribunal made an error of law and the following decision should be substituted: