IA018412015

In a decision sent on 5 October 2015 First-tier Tribunal (FtT) Judge Hussain allowed the appeal of the respondent (hereafter the claimant) who is a national of Algeria against a decision made by the appellant (hereafter the Secretary of State for the Home Department or SSHD) dated 9 January 2015 refusing his application to remain based on human rights.

Judge Hussain did not consider that the claimant had made out a case that he could succeed under the Immigration Rules dealing with Article 8. Judge. He rejected the claimant's claim that he would be imprisoned on return to Algeria because he had failed to comply with his obligations as a reserve soldier. He was adamant that the claimant had family members in Algeria and that he had not lost all ties with that country and could re-integrate there.

Judge Hussain then turned to consider whether the claimant was entitled to succeed outside the Rules on Article 8 grounds. He concluded that the claimant could not succeed because there was "nothing exceptional about the claimant's circumstances that would merit consideration outside of the ... Rules" [18].

The only reason the judge allowed the appeal was because he was dissatisfied with the treatment given by the SSHD in her refuel letters to paragraph 353B considerations. Paragraph 353B came into force on 13 February 2012 following the same Statement of Changes in Immigration Rules, as that which deleted of paragraph 395C. Paragraph 353B, in Part 12 of the Immigration Rules, entitled "Procedure and rights of appeal", reads as follows:

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's: