MM v SSHD
[2014] UKUT 105 (IAC), at [14] – [18]. The issue is whether the hearing was fair. Once it is decided that the hearing was unfair the error of law is automatically a material one, unless the context is one of the greatest rarity. That also has consequences for the final order which we shall make. This is the first error of law which requires the determination of the First-tier Tribunal to be set aside.10.The second error of law is also of an elementary kind and dimensions. In the Secretary of State’s decision there was a failure to recognise that the conclusion that the Appellant’s 2011 leave to remain application had contravened a provision of the Rules, namely a requirement of candour and honesty, did not lead inexorably to the further conclusion that the application had to be refused. Rather there was a discretion to be exercised. The terms of the decision letter make clear that the decision maker did not appreciate this. The rejection of the application was considered to be obligatory, a matter of course rather than a matter of discretion. The error of law committed by the Judge was to fail to recognise the presence of that error in the impugned decision.11.This is entirely without prejudice to Mr Malik’s separate argument relating to the construction of the Rule and in particular how one is to construe the terms “the applicant” and “the application”. We do not need to determine that interesting argument in this particular case.12.The third identifiable error of law in the Judge’s determination relates to his treatment of the so-called “generic” evidence. This is identifiable in the penultimate sentence of paragraph 16 of the determination. There the Judge makes a rather bare and sweeping statement: “The Home Office have access to all appropriate data and enquiries which were undertaken internally by ETS”. We all know this to be manifestly unsustainable. This assessment is made irresistibly by virtue of this Tribunal’s decision in the case of