Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08467/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 7 February 2017
Decision given orally

Before

UPPER TRIBUNAL JUDGE DAWSON

Between

AK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Smyth, Kesar & Co Solicitors (Tonbridge)
For the Respondent: Ms Holmes, Home Office Presenting Officer

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 him or any member of his 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.

DECISION AND REASONS

1. In a decision promulgated 25 February 2015 First-tier Tribunal Judge Hunter dismissed on all grounds an appeal by the appellant, who is a national of Iraq, where he was born in 1990. He also made an anonymity order.
2. There is a long procedural history which in summary is as follows. The appellant arrived here in July 2007 and sought asylum, which was refused but he was given discretionary leave due to his age. Application was made the following year for variation of that leave, which was refused by the Secretary of State in February 2010. An appeal against that decision was dismissed by the First-tier Tribunal on 1 August 2010. Application for permission to appeal that decision was refused.
3. The appellant made further representations to the Secretary of State, which were refused on 10 February 2014, apparently because of argument over the lawfulness of that decision having regard to Ahmadi (s. 47 decision: validity; Sapkota) Afghanistan [2012] UKUT 147 (IAC). The Secretary of State issued a supplementary decision letter dated 7 October 2014. It is the appeal against that decision which is now before me.
4. Permission to appeal the decision of FtTJ Hunter was granted on the renewed application for reasons given in the decision of UTJ Frances on 11 June 2015. Following a hearing on 3 August 2015, Deputy Upper Tribunal Judge Alis issued his decision giving reasons for finding that the decision of First-tier Tribunal Judge Hunter was infected by error and set a date for the remaking of the decision before him.
5. On 22 September 2015 DUTJ Alis remade that decision and for reasons given in his decision promulgated 5 October 2015 (and dated the same day), he explained that he had set aside the earlier decision by FtTJ Hunter save for the decision under Article 8 which was unchallenged. He remade the decisions in the appeal on asylum, humanitarian protection and Articles 2 and 3 of the Human Rights Convention and dismissed the appeal on all grounds. Although it was unnecessary for him to do so, he upheld the decision of the First-tier Tribunal in respect of Article 8. Nothing turns on that. It has been conceded by Mr Smyth that Article 8 is not pursued.
6. The matter came before Upper Tribunal Judge Reeds on 12 November 2015, in relation to an application for permission to appeal to the Court of Appeal dated 21 October 2015. Her provisional view was that the circumstances of the case fell within Rule 45(1)(b) having regard to the promulgation of the country guidance decision in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) during the interregnum between hearing the appeal and promulgation of the decisions of DUTJ Alis; decision. The provisional view expressed by UTJ Reeds was that had DUTJ Alis been aware of the country guidance case, he would have applied the country guidance decision in AA Iraq.
7. I am not sure that I have a complete correspondence file but it appears that the appellant's representatives wrote to the Upper Tribunal on 12 November 2015. UTJ Reeds made a further decision dated 14 April 2016 in which she refers to an application by the appellant dated 12 November 2015 although this may have been an error and she intended to refer to the application for permission to appeal that triggered her first decision. In summary, she refined her earlier decision of 12 November 2015. She observed that as no proposal had been received to the contrary she gave directions in terms that the decision of DUTJ Alis should be set aside and that the appeal be listed before the Upper Tribunal on a date to be fixed. Other directions were given for the steps to be taken by the parties.
8. The appeal was listed before UTJ Eshun on 9 June 2016. She adjourned that hearing although issued a decision and directions dated 9 June 2016 clarifying that DUTJ Alis' decision of 3 August 2015 finding error of law was included in the set aside decision by UTJ Reeds.
9. On 20 June 2016 the appellant's solicitors took the first step in judicial review proceedings by issuing a pre-action-protocol letter essentially complaining about the absence of reasons by the Upper Tribunal for the decision to set aside the decision finding error of law as opposed to the remaking. There was also a challenge to the power of UTJ Reeds to set aside the decision of DUTJ Alis. The judicial proceedings have not been pursued and do not require further consideration.
10. The appeal was then listed for hearing before Upper Tribunal Judge Goldstein on 13 July 2016. He has since retired and it is unclear what occurred at hearing.
11. The matter came before me as Principal Resident Judge for review of the file and I wrote to the parties in the following terms on 8 November 2016:
"The file in this case has been brought to my attention. You will be aware that the appeal has a considerable history. The present status is that the decision of the First-tier Tribunal to dismiss the appeal on eight grounds is unchallenged but that other aspects of the decision are the subject of an appeal to the Tribunal. Permission has been given but there has been no effective determination. Judge Goldstein heard the appeal on 13 July 2016 but retired shortly afterwards without apparently making any determination and I am afraid it is impracticable to obtain one from him. One of the key questions is whether the First-tier Tribunal adequately directed itself on the law of internal relocation. I have considered the decision and I am bound to say that there does appear to be considerable merit in this point. In addition there was the difficulty of the emergence of new country guidance at precisely the same time as Judge Alis, the most recent person to consider the appeal substantively, was making his decision. In the circumstances the most pragmatic solution may be to detect error of law without much ado as suggested above and set the First-tier Tribunal's decision aside and remit for a further hearing before the First-tier Tribunal at which all relevant matters can be addressed in the light of the current circumstances. Your submissions on this course of action will be considered if received within fourteen days of the date of this letter."
12. The appellant's solicitors responded to that letter. It appears they asked for a copy of my letter to be resent. I am not sure why, but on 3 January 2017 they wrote to say this:
"We agree that the most pragmatic solution given the history of the case including the retirement of Judge Goldstein may be to remit the appeal for a further hearing before the First-tier Tribunal. However, we should emphasise that as a Kurd from Kirkuk our client has previously been accepted by the respondent to be at risk in his home area (which is consistent with the most recent country guidance AA). Therefore we would ask for a direction to be made that the sole issue for the First-tier Tribunal to determine is the reasonableness of internal relocation."
13. Unfortunately my letter does not seem to have reached Ms Holmes, who has represented the respondent today. After giving her the opportunity of considering my letter and conferring with Mr Smyth on behalf of the appellant the parties agree that my proposed course is one that should be adopted. They both accept that the First-tier Tribunal erred in law when considering the option of internal flight or internal relocation.
14. Accordingly I set aside the decision of the First-tier Tribunal insofar as that issue alone is concerned. In the light of the findings of fact which need to be made and assessed, I am satisfied that the better course is for the case to be remitted to the First-tier Tribunal for the decision to be remade. For the avoidance of any doubt it is accepted by the Secretary of State, as acknowledged by Ms Holmes, that there is no challenge to the finding that the appellant would be at risk of harm in his home area and that the issue to be considered by the First-tier Tribunal is that of internal relocation elsewhere in Iraq.

Signed Date: 06 February 2017

Upper Tribunal Judge Dawson