Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04127/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 November 2016
On 3 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

T N
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Trussler, Counsel, instructed by Legis Chambers
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a national of Uganda born on 18 December 1995. She entered the UK as a visitor on 14 October 2013, shortly before her 18th birthday and following a successful appeal against the refusal of entry clearance. Prior to that she had made an application to join her parents for settlement but that was refused in December 2011 and her appeal against that decision was dismissed in September 2012. Following her arrival, the appellant made an application to remain on article 8 grounds. The application was refused on 25 November 2013. A further application on the same basis was made on 30 November 2013. This was refused on 16 January 2014 and on 21 August 2014 her appeal against removal was dismissed. On 12 September 2014 she claimed asylum.

2. The applicant chose not to pursue her asylum claim at the hearing before First-tier Tribunal Judge Oliver at Hatton Cross on 28 July 2016. She relied on her human rights claim. The appeal was dismissed on 23 August 2016.

3. The appellant's claim to have been sexually abused by her mother's step brother for several years until the age of ten and to have contracted HIV as a result was accepted by Judge Woolley in her determination of 21 August 2014 (IA/06617/2014). It was also accepted that the applicant had family life with her parents. In his determination, Judge Oliver relied on the previous findings to dismiss the asylum and article 3 claims. He then went on to consider article 8 (at his concluding paragraph 16) and it is those brief conclusions that the appellant takes issue with.

The Challenge

4. The challenge to the determination is that the judge gave inadequate reasons in his brief determination for his article 8 findings, both within Appendix FM and outside the rules. It is maintained that when concluding that the article 8 claim did not satisfy the requirements of Appendix FM, he did not provide any reasons. Nor did he clarify which requirements had not been met. It is also argued that in finding that the appellant's relationships with her mother and sisters (her father has passed away) did not contain any additional significant emotional dependency, he failed entirely to have regard to the emotional support provided to the appellant as confirmed by a medical report which, though referred to in a single sentence at paragraph 13, was not engaged with.

5. In her Rule 24 response, the respondent does not oppose the appellant's application for permission to appeal and invites the Tribunal to remit the matter to the First-tier Tribunal for a fresh hearing. It is accepted that the judge failed to integrate any relevant findings on the medical evidence within his article 8 analysis and that there was an overall inadequacy of reasoning.

6. At the hearing before me on 2 November 2016, Mr Trussler relied upon that concession and Ms Ahmad confirmed that was the respondent's position.

Conclusions

7. The respondent's approach is entirely correct and is appreciated. It is plain that the sparse 'findings', if they can even be described as such, are wholly inadequate. It has to be said that an article 8 claim based on sexual abuse to the appellant as a child, the long term effect it has had on her and the contraction of AIDS as a result are matters which deserve more consideration that the six lines contained in paragraph 16. The judge has failed in his duty to provide reasons for his decision and it is regrettable that the appellant has had to endure this long period of uncertainty whilst his determination was challenged.

8. I have no hesitation in finding that the judge's determination is wholly devoid of reasoning and therefore so flawed that it must be set aside in its entirety.

Decision

9. The determination contains material errors of law and is set aside. The matter shall be transferred back to the First-tier Tribunal for consideration afresh by a different judge and for a fresh decision to be made.

Directions

10. No later than 7 working days prior to the hearing, the appellant is to serve upon the Tribunal and the respondent a paginated bundle of all the documentary evidence to be relied on including those documents already submitted. Up to date witness statements from the appellant and her mother shall be provided.

11. The appeal shall be heard in camera.

Anonymity

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

Signed

Judge of the Upper Tribunal

Date: 2 November 2016