Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00408/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th November 2016
On 14th November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

O R
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Ms M Mughal, Montague Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State I shall refer to the parties in the First-tier Tribunal. The Appellant's appeal against the refusal of his protection claim was dismissed by First-tier Tribunal Judge Rowlands on asylum and humanitarian protection grounds and allowed on human rights grounds in a decision dated 12th September 2016.

2. The Secretary of State appealed on the basis that the decision to allow the appeal on Article 8 grounds was inconsistent with the judge's reasoning in the body of the decision. It was apparent that the judge meant to dismiss the appeal under Article 8 and it was submitted that the judge had not given any reasons as to why the appeal should be allowed. The grounds of appeal were lodged following the Vice Presidential guidance given in Katsonga ("Slip Rule"; FtT's general powers) [2016] UKUT 228 the first head note of which stated that the slip rule, Rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.

3. Permission to appeal was granted by First-tier Tribunal Judge Grimmett on the grounds that she was satisfied from reading the decision that the judge intended to dismiss the appeal on human rights grounds and not to allow it because he noted at paragraph 20 that the Appellant had not set out any basis for a human rights claim under Article 8.

4. In submissions, Ms Mughal sought to challenge the judge's reasoning in respect of the dismissal of the Appellant's appeal on asylum and humanitarian protection grounds. However, there was no cross-appeal and therefore there was no basis to challenge those findings before me.

5. Mr Melvin submitted that it was quite clear that the judge had made a slip and since there was no slip rule to rectify the situation, the only thing to do was to set the decision aside and remake it.

Conclusions

6. The judge made the following findings:
"20. The Appellant has made a claim that his appeal should be allowed on the basis of his rights under Article 8. Nowhere in the notice of appeal have the grounds set out the basis for that claim. I note that the Appellant has only been in the United Kingdom since 2013 and clearly cannot comply with any of the Immigration Rules as to his family or private life.
21. There is nothing exceptional presented to me in this case which would lead me to conclude that his family or private life should be considered outside the Immigration Rules."
7. I find that it is clear from those paragraphs that the judge intended to dismiss the appeal on Article 8 grounds and he has clearly made an error under the heading "Notice of Decision" in stating, "The appeal is allowed on human rights grounds."

8. Accordingly I set aside the judge's decision to allow the appeal on human rights grounds and remake it. The appeal is dismissed on human rights grounds.

Summary of Decision

The Respondent's appeal to the Upper Tribunal is allowed.

The Appellant's appeal is dismissed on Article 8 grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

J Frances

Signed Date: 8th November 2016

Upper Tribunal Judge Frances