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Appeal - Consideration under Alternative Rules

It has been some time since we have reported here any of our immigration cases. There was an interesting appeal hearing before the English Immigration Tribunal in March this year. The First-tier Tribunal was required to consider if it can consider an appeal under the immigration rules related to the PBS Dependant Child category even when the application was made under Paragraph 297 of the immigration rules. The applicant was seventeen and a half years old at the time of application in January 2021. At the time of his application, his father already had indefinite leave to remain granted under Tier 2(General) route. His mother had joined his father in the UK as a Tier2 (General) Dependant. She was still under the same route and had not acquired the indefinite leave to remain at the time of her son's application. The application should have been made under the immigration rules related to the PBS Dependant Children instead of Paragraph 297 of the immigration rules. In July 2021, the Entry Clearance Officer contacted the applicant to withdraw the application and apply under the correct category. The applicant had turned 18 years old by then. Hence, if he had withdrawn the application and made a new application, he would not have met the requirement of the PBS Dependant Child category (Paragraph 319H) of the immigration rules). Hence, he requested the Home Office to decide on his application under Paragraph 297 if it is not happy to backdate his new application as a PBS Dependent Child. The Entry Clearance Officer disagreed to backdate his new application (if made) and refused the application after having considered it under paragraph 297 of the immigration rules. Our Vikas Sharma, also an English solicitor, is a consultant in an English law firm. He was engaged to represent the applicant in an appeal against the refusal decision. Vikas argued before the Tribunal that the Entry Clearance Office should have considered the application under the PBS Dependant Child category as it was obvious from the facts of the case which immigration rule applied. Moreover, the applicant had paid more application fees than required for the relevant category. Vikas relied on SZ (Applicable immigration rules) Bangladesh [2007] UKAIT 00037 in support of this argument. The First-tier Tribunal appreciated this argument and allowed the appeal. In general, it is expected that an application should be made under the correct category of the immigration rules. However, under the cases such as the present one, the Tribunal is entitled to consider the appeal under the alternative rules as it was obvious from the application itself that the Home Office should have considered it under the correct category of the rules.