AA/10416/2015

• Status of case: Unreported
• Hearing date: 27 Jan 2017
• Promulgation date: 20 Mar 2017
• Publication date: 4 Mar 2022
• Last updated on: 4 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10416/2015


THE IMMIGRATION ACTS


Heard at Birmingham
Decision & Reasons Promulgated
On 27 January 2017
On 20 March 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD


Between

loveneet kaur
(anonymity direction not mADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Respondent: Mr R Bircumshaw, Solicitor, Coventry Law Solicitors.
For the Appellant: Ms A Aboni, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Juss sitting at Birmingham. The Appellant had appealed against the Respondent’s decision to refuse her asylum claim and in respect of Article 8 of the European Convention on Human Rights.

2. The Appellant had abandoned her asylum claim and instead had relied on her maternity of her claimed daughter in respect of her Article 8 claim. The Judge of the First-tier Tribunal had dismissed the Appellant’s appeal.

3. The Appellant’s grounds of appeal state that the Judge erred by concluding that the Appellant’s daughter could only acquire British citizenship if one or both of her parents were also British. The Judge found that the child’s father had the benefit of Indefinite Leave to Remain but that as he was not British then the child was not British either. The Appellant refers to section 1(1) of the British Nationality Act 1981 which makes it plain that a child born in the United Kingdom can acquire British citizenship if either of his/her parents are British OR IF they are settled in the United Kingdom.

4. The grounds of appeal state further that the Judge should have gone on to consider the Appellant’s Article 8 case under the Immigration Rules specifically pursuant to EX1(a).

5. At the hearing before me, Mr Bircumshaw said that it was accepted that there was an error of law but it is suggested by the Respondent that there was inadequate reasoning. He said that the reasoning was thorough though. The Appellant was found to be entirely credible. The findings were sustainable and Article 8 should have been considered. He said I should allow the appeal.

6. Ms Aboni said that she relied on the Respondent’s Rule 24 response. The Respondent accepts that the Judge did make an error of law. She said I should remit the matter to the First-tier Tribunal with no preserved findings.

7. In reply Mr Bircumshaw said that the issue he had with the Respondent’s approach was that the Appellant had explained her position and she could provide for the child. Was the Respondent really saying that the appeal would not succeed under EX1?

8. The Judge did make a material error of law in respect of the issue relating to section 1(1) of the British Nationality Act 1981. A child born in the United Kingdom if one of the parents has settled status does mean that the child too acquires British Citizenship. Therefore, the Respondent is correct to concede that there was a material error of law in the Judge’s decision, particularly at paragraph 24 of his decision. The single but fundamental ground of appeal undermines the Judge’s decision on a wholesale basis.

9 The remaining issue is whether the matter ought to be remitted to the First-tier Tribunal or whether I should re-make the decision. Having considered the Judge’s reasoning and the findings, particularly those at paragraph 25 of the Judge’s decision I conclude that the reasoning is inadequate and insufficient to enable me to re-make the decision. A further hearing is required to finalise the findings. On balance, I have concluded that the best venue for that is at the First-tier Tribunal. The finding that the child is the daughter of the Appellant and Mr Davinder Singh is a preserved finding as is the finding that Mr Davinder Singh has Indefinite Leave to Remain. All the other findings shall be at large. For the avoidance of doubt, the Appellant had abandoned her protection claim. That remains dismissed. The only issue at the remitted hearing will the Immigration Rules and Article 8 ECHR.


Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal is set aside with the limited preserved findings referred to at paragraph 9 above.
There shall be a re-hearing at the First-tier Tribunal

No anonymity direction is made.



Signed Date 19 March 2017

Deputy Upper Tribunal Judge Mahmood