IA176712014

For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

The Appellant is a national of Bangladesh whose application for variation of leave to remain here was refused by the Secretary of State and a subsequent appeal before First-tier Tribunal Judge Devittie dismissed in a decision promulgated on 23 rd September 2015.

Grounds of application were lodged on the basis that the judge had allowed the appeal in open court only to then dismiss it without any reference to why he changed his mind in his written decision. Furthermore, the decision wrongly stated that the Appellant required the English language requirement and that was the whole basis of her applying for an extension and not indefinite leave to remain.

Permission to appeal was duly granted. The Secretary of State responded under Rule 24 stating inter alia that it was unfortunate the judge stated that he was allowing the appeal which was not in accordance with the Procedure Rules but in any event the requirements of the Rules must be met.

There is guidance in Macdonald's Immigration Law and Practice Ninth edition Volume 1 at paragraph 20.129 on page 1884 that in a situation such as happened in this case (namely when a judge allows an appeal in open court but later changes his mind and dismisses it) he is obliged to allow further evidence or submissions in such circumstances. The judge did neither. Mr Rene had appeared at the First-tier hearing and was able to confirm that the judge had indeed said he was going to allow the appeal.