IA230662015

The Respondent is a national of Nigeria who was born on 11 November 1970. His appeal was allowed by the First-tier Tribunal Judge S Taylor in a decision promulgated on 6 September 2016. The Appellant sought permission to appeal that decision and permission was granted by First-tier Tribunal Judge Robertson on 10 January 2017. For ease of reference, I shall refer to the Appellant in this appeal as the Secretary of State and to the Respondent as the Claimant.

In a decision sent to the parties on 2 March 2017 I found that the First-tier Tribunal had made a material error of law. My core findings are at paragraphs 7 and 8 of the decision:

The First-tier Tribunal did not conduct a freestanding Article 8 assessment outside the Rules and no proportionality assessment was carried out, simply because the Judge accepted erroneously that the Claimant met the requirements of the Rules. Consequently, the error must be material because the appeal could only be allowed outside the Rules, it not having been the case that the Judge found that any other requirements of the Immigration Rules were met. There was no reference to the statutory requirements that the Tribunal is obliged to take into account under Section 117 of the 2002 Act."

I set aside the decision of the First-tier Tribunal and adjourned with directions for the remaking of the decision in the appeal.

Ms Praisoody chose not to call the Claimant to give evidence. She submitted that the nature of his wife's work would put her in danger and it was unclear how long it would take to make an entry clearance application. Living in Nigeria would cause her enormous difficulties. The Claimant satisfied the Rules and to force him to return to seek entry clearance was not necessary.