Mushtaq (clarity of judge’s decision) Pakistan- Case note

Mushtaq (clarity of judge’s decision) Pakistan [2011] UKUT 00122 (IAC)

Background

The question for the Upper Tribunal was whether the terms in which the Immigration Judge had disposed of the Appellant’s appeal raised a jurisdictional issue relating to the Appellant’s right of appeal against the determination.

The appeal before the Immigration Judge  (IJ) was an appeal against a decision of the Respondent to refuse the Appellant’s application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant under the Points Based System.

The Respondent was not satisfied that the Appellant was entitled to the 40 points he had claimed under Appendix A of the Statement of Changes in the Immigration Rules HC 395 (as amended) in respect of previous earnings. In order to achieve 40 points, it was necessary for the Appellant to establish that his previous earnings for the relevant period of assessment were between £35,000 and £39,999. 

In the light of the above, the Respondent was also not satisfied that the Appellant was entitled to 5 points in respect of UK experience. Accordingly, the application was refused. 

The IJ referred to the Appellant’s documentary evidence and said that it was not reasonably possible to identify the income from the invoices. She considered that the proven income was £31,848.27- this entitled the Appellant to 30 points under Appendix A. At the end of her determination, the IJ said that she allowed the appeal to the extent identified above.

A question therefore arose as to whether the Immigration Judge had allowed the appeal, and if so, whether she had only allowed it to some limited extent, or whether, on a true construction of her determination and reasoning, she had in fact dismissed the appeal.

If the Immigration Judge allowed the appeal, even if only in part, there was potentially an issue as to whether the Appellant had a right to appeal against the determination.

Held

The Upper Tribunal held that the IJ  had not allowed the appeal to any extent. The IJ’s  finding that he was not entitled to the requisite number of points in respect of previous earnings, and UK experience meant that in truth he had lost his appeal.

It was wrong to allow his appeal simply on the basis that some findings of fact were made in his favour, when those findings did not entitle him to further leave to remain in the capacity sought under the Immigration Rules.

The IJ should have stated in the determination that the appeal was dismissed, and not that it was “allowed to the extent identified above”. Given that the true construction of the determination was that the appeal had been dismissed, it followed that the Appellant had a right to appeal against the determination.

At the hearing, the Respondent conceded that the Immigration Judge had materially erred in law in her assessment of the documentary evidence as to previous earnings and accepted that the documentary evidence before the Tribunal established that the Appellant’s previous earnings for the relevant period of assessment were a little in excess of £35,000, which meant that he should have been awarded 40 points in respect of previous earnings and 5 points in respect of UK experience. The Appellant’s appeal was therefore allowed.

Whilst the Appellant succeeded in his appeal, the Upper Tribunal observed that the question of whether there is a right of appeal, against a determination, which does allow appeal in part, did not arise in this case and would have to be left to another day.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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