Case No. UKUT-00197-(IAC)

52. It is, perhaps regrettable that the misunderstanding has gone beyond the First-tier Tribunal. In the Rule 24 response, the Specialist Appeals Team opposed the appellant’s appeal. The response pointed out that the judge was guided by the legal submissions of the appellant’s representative, the judge having been informed that the appellant conceded his case under paragraph 316A. It further alleges that the Judge was bound to accept such a submission and not go behind it. We reject that submission. It is of course for the Judge to apply the law and the concession made as to the law applicable under paragraph 316A was legally flawed. Such a legal flaw as this cannot be remedied by concession. 53. The response makes a further serious error. The writer states : Whilst the judge’s findings related to the matters under paragraph 309B and 310 of the Immigration Rules, these were essentially concerned with the same issue and that was the serious and compelling family circumstances (namely whether the grandmother’s state of health, lack of parents and lack of interest from his siblings), which make exclusion undesirable…. Although under a different provision, the judge took into account all of the circumstances of the appellant including the grandmother’s health, the existence of close relatives in Jamaica, the lack of evidence to suggest efforts were made with siblings to take a role in the appellant’s care and upbringing. 54. In our judgement, the determination was fatally flawed by applying the incorrect - and different - part of the Rules. Paragraph 316A is not ‘ essentially concerned ’ with the same issue at all. It is not concerned with serious and compelling family circumstances making exclusion undesirable. 55. Based on what we consider to be an unlawful approach adopted by the Secretary of State in the Rule 24 response, it is unsurprising that the respondent adopted the judge’s finding that there was no interference with family life as it would continue on the same basis that it has since its inception.