Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10351/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 29th November, 2016
Sent for typing on 29th
November 2016 and signed
And sent to Promulgation
On 2nd February.
On 8th March, 2017

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AI
(ANONYMITY DIRECTION Made)
Respondent

Representation:
For the Appellant: Mr Bates, Senior Home Office Presenting Officer
For the Respondent: Mr G Brown of Counsel

DECISION AND REASONS

1. In this appeal, both the Secretary of State for the Home Department and AI have successfully obtained permission to appeal the decision of the First Tier Tribunal Judge. I have treated the Secretary of State for the Home Department as being the appellant, but in this determination, I shall refer to her as being, “the claimant”.

2. The respondent is a citizen of Iraq, who was born on 17th December, 1987. He applied for a visa to enter the United Kingdom on 25th February 2013 and entered on 14th March, 2013. He then successfully applied for his visa to be extended until 30th January 2018.

2. On 1st September, 2014, the respondent claimed asylum on the basis that he feared return to Iraq, because he would face mistreatment due to his imputed political opinion and because he had converted to Christianity. On 2nd July 2014, the claimant refused the appellant’s application and the respondent appealed to the First-tier Tribunal.

3. His appeal was heard by First-tier Tribunal Judge J Austin in Manchester on 19th May, 2016. The judge refused the respondent’s claim for asylum and humanitarian protection claim, but allowed the respondent’s human rights claim, on the basis of his Article 8 rights and the family life he enjoyed with his son.

4. The respondent sought and was granted permission to appeal, on the basis of the judge’s failure to give adequate reasons for rejecting the evidence of a witness for the appellant, Miss Sadeq who gave oral evidence to the judge. The claimant also sought and obtained permission to appeal on the basis that the judge failed to approach the appellant’s Article 8 rights first through the lens of the Immigration Rules and then to follow the approach in SS (Congo). It was also unclear precisely what the relationship with the son was, given that the son lives in Scotland and the respondent in England.

5. I first heard submissions from Mr Bates. He suggested that there was no consideration by the judge at paragraphs 31 or 32 of the determination, of Section 117B(6) of the 2002 Act. The judge appears to have lost sight of the fact that the respondent’s child does not have settled leave in the United Kingdom. He has limited leave in line with his mother’s. The judge fails to explain why the fact that the respondent’s son and wife have limited leave outweighs the public interest. The judge also fails to have regard to the fact that the respondent has never had permanent leave to remain and has failed to consider and apply AM (Malawi) [2015] UKUT 0260 (IAC) or MA (Pakistan) [2016] EWCA Civ. 705. The judge has carried out a best interests assessment only, which has informed the judge’s decision on Article 8 and that is simply unsatisfactory. The judge has failed to properly consider the public interest, when the child is not a qualifying child under Section 117B(6).

3. As to Article 3 and human rights Mr Bates suggested that the judge had dealt properly with the evidence of the respondent’s witness at paragraphs 22 and 23.

4. Mr Brown told me that the respondent’s wife has leave to remain until 2018 and the child has leave in line with her. The respondent is the father of that child. Mr Brown accepted that the judge had erred in law by failing to consider first the question of the Immigration Rules, but submitted that the error was not material since it was not capable of affecting the outcome of the appeal. I told Mr Brown that I did not need to hear from him in relation to his challenge to the asylum and Article 3 decision.

5. I reserved my decision.

6. Whilst at paragraphs 22 and 23 of the determination the judge does record the evidence of Sheliar Sadeq, she makes no findings on the evidence she heard. Towards the end of paragraph 23, the judge notes that the evidence of the witness conflicts with that of the respondent, but she does not say whether she finds Miss Sadeq to be credible or not. I believe that to have been an error in law; the judge does not appear to have considered the possibility that the witness may have been mistaken rather, than simply assuming that the respondent was not credible.

7. I find also that the judge’s consideration of the respondent’s Article 8 human rights claim cannot stand either. The judge does not appear to have considered at all the respondent’s entitlement under the Rules, nor to have applied SS (Congo). When considering the interests of the child, the judge does seem to have ignored the fact that the father lives in Preston and the child with the mother in Scotland. The judge simply suggests that although estranged from the child’s mother, the respondent has maintained a significant role in the emotional wellbeing and care of the child (without actually explaining the nature of that ‘significant role’) that the child’s father should not be removed to Iraq. The judge ignores the fact that both the child and the child’s mother have limited leave to remain in the United Kingdom.

8. I have concluded that the appeal does need to be reconsidered afresh. I set aside the determination and direct that it should be heard afresh by a judge other than First-tier Tribunal Judge J Austin.

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 their 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.

Richard Chalkley
A Judge of the Upper Tribunal