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I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
The Judge dismissed the appeal because he was satisfied that in studying at the Kingston College of IT and Management instead of Hammersmith Management College without permission the Appellant was in breach of the provisions of Section 50 Borders, Citizenship and Immigration Act 2009. Therefore the Appellant�s application for leave to remain fell to be refused under the provisions of paragraph 322(3) of the Statement of Changes in Immigration Rules HC 395.
At the hearing Mr Nasim argued that the Judge had erred in law in coming to this conclusion because paragraph 322(3) of HC 395 was a discretionary remedy, and there was nothing to indicate that in refusing the Appellant�s application under that provision the Respondent had exercised a discretion. In response, Mr Tufan indicated that he was sympathetic to that argument.
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I remake the decision in the appeal by allowing it to the extent of finding that the decision of the Secretary of State was not in accordance with the law.
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