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This is an appeal by the Secretary of State against the determination of First-tier Tribunal Judge Whalan promulgated on the 27 th of May 2014 in which the Appellants� visit visa appeal were allowed. The grounds are to the effect that as the applications post-date the 25 th of June 2013 the Judge was prohibited from considering the merits of the appeals under the Immigration Rules and was limited to considering human rights and race discrimination and was wrong to allow the appeal under the rules.
The determination is clearly flawed as by the provisions of section 52 of the Crime and Courts Act 2013 the rights of appeal in family visit visa applications were curtailed and limited to human rights and race discrimination grounds. The Judge had no power to consider the merits of the substantive application and was wrong to do so, the appeal could not be allowed on that basis.
At paragraph 5 the Judge noted that human rights and racial discrimination had been raised but without any specific detail. At paragraph 13 the Judge dismissed any suggestion that the decision was a consequence of racial discrimination or a breach of the Appellants� human rights.
At the hearing the Appellants were represented by the Sponsor. As the appeal had been a paper appeal the Sponsor's submissions were limited as the hearing before the Upper Tribunal was not to be a further appeal on the merits and having sought a paper appeal it would not be fair for the ambit of the hearing to be enlarged.
From what the Sponsor said it is clear that she had had a difficult year in terms of her health and that she wanted the Appellants to attend her graduation and to provide family support that had been lacking. It is a situation that commands sympathy for her and her distress at the refusal was both clear and understandable. However, at the hearing I explained that the Upper Tribunal role was limited to correcting an error by the First-tier Tribunal and that while I would consider the position she was not to be optimistic about the possible outcome.
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