Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09595/2012

THE IMMIGRATION ACTS

Heard at: Field House
Determination sent
29 October 2013
30 October 2013

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

MOHAMED SIRAJ KASIDEEN
Appellant
and

SECREATRY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms S Pinder, instructed by Kulendran Law Chambers
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The determination of the First-tier Tribunal was set aside by Deputy Upper Tribunal Judge Hall, in a decision dated 28 February 2013. The hearing of the appeal was then adjourned to await a decision in the then pending Country Guidance case, GJ. At the outset of the hearing before me Ms Pinder submitted that it was appropriate for this matter to be remitted to the First-tier Tribunal for re-hearing. Ms Saunders agreed that this was so. I invited Ms Pinder to take instructions as to why: (i) this application had not been made earlier and (ii) there had been service of a witness statement and skeleton argument as late as the morning of the hearing. Having done so she stated that there had been a change of solicitors since the Error of Law hearing and that the current solicitors had not received the Error of Law decision, or the Tribunal's directions; such documents, it appears, having been sent to the appellant's previous solicitors despite, it was said, notification of THE change of solicitors having been provided to the Tribunal.

2. Turning to the question of whether this appeal should be remitted to the First-tier Tribunal, the Senior President of the Tribunals' Practice Statement of 25th September 2012 provides as follows:

"7. "Disposal of appeals in Upper Tribunal

Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).

[7.2] The Upper Tribunal is likely on each occasion to proceed to re-make the decision instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."

3. DUTJ Hall made clear, in his decision of the 28 February, that the re-making of the decision on the appellant's appeal would be de novo, no findings of fact being preserved. Given this, I accept that the requirements of paragraph 7.2 (b) of the Senior President's Practice Statement are fulfilled.

4. In such circumstances, and given that both parties are in agreement as to the appropriate course, I conclude that it is appropriate to remit this appeal to the First-tier Tribunal for it to be determined afresh and I direct that this be so.

Decision

The decision of the First-tier Tribunal is set aside. The Upper Tribunal allows the appellant's appeal to the limited extent that it is remitted to the First-tier Tribunal to be re-heard de novo.

To this end, a Case Management Review Hearing has been fixed for Hatton Cross hearing centre on 23 December 2013. Both parties must file and serve any additional evidence to be relied upon at the substantive hearing of the appeal, no later than 18 December 2013.

Signed: M O'Connor

Judge of the Upper Tribunal Dated: 29 October 2013