AA/01464/2015

• Status of case: Unreported
• Hearing date: 5 Jan 2016
• Promulgation date: 2 Feb 2016
• Publication date: 20 Oct 2016
• Last updated on: 20 Oct 2016

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01464/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision and Reasons Promulgated
On 5 January 2016
On 2 February 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

mohamed fajeed usan
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Ms N M Hashmi, instructed by Lyon Legal Ltd
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer


DECISION AND REASONS

1. On 6 July 2015, Designated First-tier Tribunal Judge Macdonald granted the appellant permission to appeal to the Upper Tribunal against the decision and reasons statement of First-tier Tribunal Judge Henderson that was promulgated on 10 June 2015 on the grounds that it was arguable that the judge had applied the wrong standard of proof throughout.
2. In its rule 24 response notice, the Home Office accepted that the judge's decision and reasons statement was fatally flawed for the reasons identified by Judge Macdonald. I am in agreement. Although at paragraph 53 of his decision and reasons statement Judge Henderson refers to the "reasonable likelihood test", everywhere else, including his self direction at paragraphs 21 and 22 and his findings at paragraphs 32 and 41 he applies a balance of probabilities test.
3. Such a fundamental error cannot be considered to be a mere slip and therefore the whole decision is unsound and must be set aside and remitted to the First-tier Tribunal for a fresh hearing. Ms Hashmi thought some positive findings might be preserved but I suggested that it would be wrong to pick and choose since the First-tier Tribunal Judge rehearing the appeal will have to make their own credibility findings on all the available evidence in the round. For the avoidance of doubt, nothing whatsoever is preserved from Judge Henderson's decision and reasons.
4. I direct that the appeal is to be remitted to the First-tier Tribunal to be heard by a judge other than Judge Henderson. As per the appellant's request, the appeal is to be heard in Birmingham.
Decision
The decision and reasons statement of Judge Henderson contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing as per the direction given above.


Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal