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This is an appeal against the determination of First-tier Tribunal Judge Stott, promulgated on 9 th April 2014, following a hearing at Birmingham on 8 th April 2014. In the determination, the judge allowed the appeals of Mrs Lee Pheng Lim, aged 49 years, Jian Wei Kiam, aged 15 years, and Rowan Jian Han Kiam, aged 13 years. The Respondent, Entry Clearance Officer, applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants are a mother and her two children. All are citizens of Malaysia. They made applications under paragraphs 18 and 19 of the Immigration Rules to enter the UK on the basis of their status as returning residents, and by a decision dated 25 th February 2013, their applications were turned down on the basis that they had been living out of the United Kingdom for more than two years, and in any event had only lived in the UK since 1999, and then relocated back to Malaysia in 2006.
The grounds of application state that the judge erred in law because he exercised discretion and paragraphs 18 and 19 do not allow for the exercise of discretion. Once it was clear that the Appellants had ceased to live in the UK from 2006 onwards there was no discretion but to follow the Rules and to reject the appeals.
On 25 th April 2014, permission to appeal was granted on the basis that the judge failed to demonstrate why it was appropriate or competent to go on to consider the Appellants� intentions, when they could not comply with the Immigration Rules.
For his part, Mr Richards submitted that even if this guidance applied, the fact was that Judge Stott did not have any regard to this guidance. Indeed, the Grounds of Appeal, and the skeleton argument, make no reference to them at all. This is the first time that Counsel, Mr Wray, has turned up with a copy of this guidance and placed reliance on it. Therefore, the judge had wrongly used his discretion to allow the appeal. The guidance played no part in the judge�s decision. Therefore, there was an error of law.
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