IA227432012

Ms Muruganandam is a citizen of India born on 22 February 1982. Although this is the Secretary of State�s appeal, it is convenient to refer to Ms Muruganandam as the appellant.

Following a grant of permission to appeal, the Upper Tribunal set aside the First-tier Tribunal�s decision in the light of the decision in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 and substituted a decision allowing the appeal under the immigration rules.

At the hearing there was no appearance by or on behalf of the appellant and no explanation for her absence. I heard from Mr Jack who relied upon the decisions in Raju and Nasim in submitting that the appeal had been correctly refused in the First-tier Tribunal under the immigration rules and on Article 8 human rights grounds. He submitted that the judge�s decision did not contain any errors of law and had correctly been allowed with respect to the section 47 removal decision.

The appellant�s case is identical in all material respects to those of the appellants in Nasim 1 and 2 and the reasoning in Nasim 1 therefore applies to her. Following the Court of Appeal judgment in Raju , the Upper Tribunal�s decision in Khatel is no longer a correct statement of the law and accordingly the decision of Upper Tribunal Judge O�Connor of 15 April 2013 has to be set aside pursuant to rule 45 (1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The judge�s findings on Article 8 have not been challenged in the grounds of appeal. Indeed, the judge made detailed and cogently reasoned findings in that respect and reached a conclusion that was open to him on the evidence before him and is entirely consistent with observations made in Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 at paragraph 57 and in the head-note to Nasim 2. It is also accepted by the respondent that the section 47 removal decision was unlawful and accordingly the judge properly allowed the appeal on that limited basis.