Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00503/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 January 2017
On 13 February 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

a S
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee, Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal by a citizen of Libya against the decision of the First-tier Tribunal allowing on human rights grounds with reference to Article 8 of the European Convention on Human Rights his appeal against the decision of the respondent refusing him asylum in the United Kingdom.
2. Essentially it is the appellant's case that he is entitled to leave under Article 15(c) of the Qualification Directive. This is a point he has made clear throughout the proceedings and it is a point that has not been considered by the judge. The judge thought it right not to determine that point and said in terms that he had made no findings on Article 15(c). That is an error and a material error because the outcome for the appellant is different. If the appellant succeeded on Article 15(c) the leave that he could expect to be granted in the ordinary course of events is better and more advantageous to him than the leave that should be granted ordinarily as a consequence of the decision to allow the appeal with reference to Article 8. It follows therefore that he has not had the proper consideration of his case.
3. Mr Clarke for the Secretary of State did not disagree with this analysis.
4. I have to decide what to do next and there is a strong case for retaining the case in the Upper Tribunal because no findings of fact are necessary and the listing arrangements at the moment are such that it may well be quicker to deal with it here. The difficulty I have with that argument is that the appellant's case has just not been considered and he would be deprived of a perfectly legitimate possibility of an appeal in the event of the decision of the Upper Tribunal proving unsatisfactory. I think that is an important point. It is not an absolute right but it is something that weighs heavily.
5. I therefore allow the appeal to the extent that the First-tier Tribunal erred in law and I leave the appeal to be decided again in the First-tier Tribunal.
6. I make the point that as things are now there is no need for any finding of fact. This is a case for arguments of law which will lead to a conclusion on the Article 15(c) point. That might change but if it changes it will be as a result of an application to adduce additional evidence made to the First-tier and they are nothing to do with me. They are not before me now.
Notice of Decision

I allow the appeal to the extent that I set aside the decision of the First-tier Tribunal and I direct that the First-tier Tribunal determine if the appellant is entitled to humanitarian protection.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 February 2017