IA178952013 & Ors.

For the Secretary of State, Mr Whitwell relied on the grounds. There was a marked difference on whether funds were available or under one�s own control. The judge was not bound by a factual finding of Judge Flynn that the potential money under the Master Card could be taken into account as this was a matter of law.

Judge Finch had dealt with all the material issues by concluding that the Respondent�s decisions were not in accordance with the law. She had allowed the appeal on that basis and presumed that the Respondent would now reconsider the application and grant further leave to remain.

I have come to the view that Mr Corben�s primary submission is correct. Judge Finch made a number of findings in her determination which, if the Secretary of State was unhappy with, she could then have lodged grounds of application contending that the decision was wrong.

The Secretary of State did not do that. Rather she issued a fresh decision refusing the application on various grounds which the Appellant then appealed to Judge Flynn who, essentially, reverted to the decision made by Judge Finch.

The question before me is whether the Secretary of State is entitled to go behind the findings of Judge Finch in the manner she has, namely by not appealing that decision but by making a fresh decision.