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      The Appellant appeals against a decision of First-tier Tribunal Judge Fenney promulgated on 5 March 2024.
      Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits the Upper Tribunal to make a decision without a hearing.
       It is not in dispute that the Appellant had neither made an application under Appendix FM nor had leave at the date of application or at all. Judge Feeney did not have the benefit of the High Court decision in Akinsanya and held that the Respondent's guidance was correct. As this part of the guidance has now been held to be incorrect it follows that the FTTJ arguably erred in determining the sole issue in the appeal against the Appellant.
       It is my preliminary view that the decision did involve the making of an error of law as set out above and that the decision of the First-tier Tribunal should be set aside without a hearing under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The appropriate course of action would be to retain and allow the appeal in the Upper Tribunal.
       Unless within 14 working days of the issue of these directions there is any written objection to this course of action, supported by cogent argument, the Upper Tribunal will proceed to determine the appeal without an oral hearing and allow the appeal.
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