IA032132014

This Appellant, Mr Solarin is a citizen of Nigeria whose date of birth is recorded as 22 nd April 1985. On 2 nd September 2013 he was granted limited leave to remain in the United Kingdom until 13 th November 2013. On 11 th November 2013, before the expiry of that leave, he made application for variation of his leave but on 23 rd December 2013 a decision was made to refuse the application. The application had been made on the basis of long residence pursuant to paragraph 276B (�the ten year Rule�).

Not content with the decision of the Secretary of State the Appellant appealed and on 1 st October 2014 his appeal was heard by Judge of the First-tier Tribunal Telford sitting at Harmondsworth. Judge Telford dismissed the appeal. He found that the application was deficient in two material particulars. Firstly that the Appellant had not demonstrated that he met the English language requirement pursuant to paragraph 276B(iv) and that in any event the Appellant had established that he had been lawfully resident in the United Kingdom for ten years.

Ms Savage for the Secretary of State accepts that the Appellant did have the requisite certification and accepts that the Appellant did have the requisite lawful residence. In those circumstances there was nothing for me to resolve. The judge clearly erred but I can deal with this simply by setting the decision aside and re-making it such that the appeal is allowed.

The appeal to the Upper Tribunal is allowed. The Decision of the First-tier Tribunal is set aside and remade such that the appeal to the First tier Tribunal is allowed.

I have heard argument on both sides as to whether or not the award should be made. Whilst I accept that when the application was first made the Appellant did not have the necessary ten years. By the time the matter came before the Tribunal he did and it was open to the Secretary of State in those circumstances to change the decision. That was not done. In the circumstances I make a full fee award.