AR (Nepal) v Secretary of State for the Home Department [2011] EWCA Civ 1439

Case No C5/2011/1225[2011] EWCA Civ 1439
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: IA/03746/2010]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 18 October 2011
Before
LORD JUSTICE RIXLORD JUSTICE SULLIVANLORD JUSTICE LEWISON
Between
AR (NEPAL)AppellantSECRETARY OF STATE FOR THERespondentHOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Howells (instructed by N C Brothers & Co Solicitors) appeared for Applicant.Mr N Clarke (instructed by Treasury Solicitors) appeared for Respondent.
Judgment
[1]I hope I will make myself understood. We think our order should be that the appeal is allowed unless within 28 days the Secretary of State applies to have the matter remitted to the First-tier Tribunal stating her opposition to the grant of indefinite leave to remain on proper grounds, in which case the matter would be remitted to the First-tier Tribunal to resolve the ground of appeal which would then be extant. We think that there should nevertheless be liberty to apply to the appellant to return to the court to submit that the opposition raised by the Secretary of State is worthless so that this court should determine that that is so and make remission unnecessary. We have it in mind that the 28 days unless order is intended as a final order. It is a strict order; unless the Secretary of State applies within 28 days then the matter will be resolved finally here. The appeal is allowed and the Secretary of State is directed to grant indefinite leave to remain unless within 28 days as a strict and final order she applies to have the matter remitted on proper grounds to the First-tier Tribunal with liberty to apply to the appellant to challenge the propriety of those grounds. That liberty to apply is just given out of consideration for the unlikely possibility that the Secretary of State pulls, as it were, a fast one. We do not want a wasteful application under that liberty to apply to us if in truth it has to go back.

Order

Appeal allowed