OA116742014 & OA116762014

For the Appellant: The Entry Clearance Officer, Mr Jarvis, Senior Presenting Officer

The question in these appeals is whether First-tier Tribunal Judge Row was correct in law in allowing the appeals under the Immigration Rules against the Entry Clearance Officer's decisions dated 10 September 2014 refusing the respondents' applications for entry clearance as returning residents to the United Kingdom under paragraph 18 of the Immigration Rules.

The judge accepted that the respondents (the claimants) could not succeed as returning residents because they had never previously had indefinite leave to enter or remain in the United Kingdom when they last left. This is uncontroversial; it was not suggested in the applications or argued before the judge that the claimants had been previously in the United Kingdom other than on a temporary basis.

Having reached this conclusion, the judge asked whether the claimants could nevertheless succeed under paragraph 297 which provides for indefinite leave to enter the United Kingdom inter alia as the child of a parent, present and settled or being admitted for settlement here. He concluded that the claimants met the paragraph 297 provisions and on this basis allowed the appeal, indicating that in such circumstances it was unnecessary for him to consider the matter under Article 8.

After hearing argument from Mr Jarvis and representations made by Dr Awoniyi, we gave our decision at the hearing that the judge had been incorrect to allow the appeal. But in all the circumstances of the case, we decided not to set aside the decision so exercising our discretion under s 12(2) (a) of the Tribunals, Courts and Enforcement Act 2007.