IA022672016 & IA022682016

For convenience I shall employ the appellations "Appellants" and "Respondent" as at first instance.

The Appellants are nationals of India who made an application for leave to remain here as a Tier 1 (Entrepreneur) Migrant with the second Appellant being the dependant on the first Appellant. Their applications were refused by the Secretary of State and their appeal heard by First-tier Tribunal Judge Davey (in the absence of the Respondent) on 25 th October 2017 and a subsequent decision allowing the appeal on Article 8 ECHR grounds promulgated on 28 th November 2017.

Permission to appeal was granted and thus the matter came before me on the above date. For the Home Office Mr Howells said that the judge had not applied the correct law and had he done so the appeal would have been dismissed under the Immigration Rules. As such the decision should be set aside and remitted for a fresh hearing.

Mr Chohan indicated that the judge had no requirement placed on him to adjourn the case to ensure fairness as there was nothing to say why the Home Office did not attend on the due date. While the Home Office might well be correct in their assessment of the statutory provisions the fact of the matter was that the judge had listened to the evidence and found that the appeal should be granted under Article 8 ECHR and therefore there was no error in law.

The judge noted that there was no cause shown why the Respondent did not attend the hearing. He had no idea considering the Respondent's stance what, if any, questions they would had of that evidence. There was prejudice or unfairness in proceeding with the hearing in the absence of the Respondent and I did not understand this assessment by the judge to be seriously challenged by Mr Howells.