Muhammad Asad Mushtaq v The Secretary of State for the Home Department

An appeal under the Immigration Rules must be decided by reference to whether the appellant satisfies the requirements for the leave sought. Findings of fact favourable to an appellant do not justify allowing an appeal, even in part, where they do not establish entitlement to leave in that capacity.

A determination expressed as allowing an appeal to a limited extent must be construed by its substance and reasoning. Where the findings show that the relevant requirements were not met, the appeal was in truth dismissed; an erroneous description of the outcome does not remove the appellant’s right to challenge it.

The appellant appealed against Immigration Judge K E Gordon’s determination, promulgated on 23 September 2010, concerning the refusal of his application for leave to remain as a Tier 1 (General) Migrant.

The respondent had refused the application because she was not satisfied that the appellant had established earnings sufficient for 40 points under Appendix A of the Immigration Rules, and therefore for the associated points for United Kingdom experience. The Immigration Judge found earnings sufficient for only 30 points, but stated that the appeal was allowed to the extent identified.

The Upper Tribunal considered the true effect of that disposition, the appellant’s resulting right of appeal, and whether the assessment of the earnings evidence involved a material error of law.

1. The appeal was allowed. The Upper Tribunal set aside the Immigration Judge’s decision for material error of law and remade it, allowing the appeal under the Immigration Rules.

2. The Immigration Judge’s finding that the appellant had proved earnings entitling him to only 30 points could not amount to any degree of success in an appeal for Tier 1 leave. To succeed, he had to establish 40 points for previous earnings and five points for United Kingdom experience. Since the findings did not entitle him to the leave sought, the appeal was in substance dismissed.

3. It was therefore wrong to describe the appeal as allowed to a limited extent merely because some factual findings favoured the appellant. On the true construction of the determination, the appeal had been dismissed. The mistaken wording could not deprive the appellant of his right to appeal. The Tribunal did not determine the separate question whether a genuine partial allowance gives rise to a right of appeal.

4. The respondent conceded that the Immigration Judge had materially erred in assessing the documentary evidence of previous earnings. On remaking the decision, the evidence established earnings slightly exceeding £35,000. The appellant was consequently entitled to 40 points for previous earnings and five points for United Kingdom experience.

• Upper Tribunal (Immigration and Asylum Chamber): set aside the Immigration Judge’s determination for material error of law and remade the decision, allowing the appellant’s appeal under the Immigration Rules.
• First-tier Tribunal: Immigration Judge K E Gordon found that the appellant had proved earnings entitling him to 30 points, but purported to allow the appeal to that extent.