Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10611/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 June 2016
On 1 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

M A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. This is a national of Palestine. He applied for asylum in the United Kingdom and that application was refused by the Respondent on 21 July 2015. The Respondent gave consideration to whether the Appellant was stateless and noted that he had made no valid application to the Secretary of State for limited leave to remain as a stateless person under paragraph 403 (a) of the Immigration Rules. The Respondent also concluded that the Appellant could return to Saudi Arabia where he had previously lived and that there would be no breach of his rights under the European Convention of Human Rights.

2. The Appellant appealed against this decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). First-tier Tribunal Judge Widdup dismissed his appeal under the Refugee Convention but allowed it on the grounds that the Respondent's decision in relation to paragraph 402 of the Immigration Rules was not in accordance with the law.

3. The Respondent sought permission to appeal against that decision and permission was granted on 6 May 2016 by First-Tier Tribunal Judge Mark Davies on the grounds that it was arguable that the First-tier Tribunal had exceeded its powers when remitting the decision to the Respondent to make a fresh decision.

4. The Respondent argued in the grounds that the First-tier Tribunal had no power to remit to the Respondent. If the First-tier Tribunal considered that the decision was not in accordance with the law because the Respondent had incorrectly applied paragraph 403 of the Immigration Rules this was fundamentally flawed. The Respondent had considered paragraph 403 and refused the application under 403 (a) as the Appellant was required by the Rules to submit an application for limited leave to remain as a stateless person, which the Respondent considered he had not. The Respondent submitted that if wrong about that then the Judge was seized of the matter and should have determined the claim under the relevant paragraph.

The Hearing

5. Ms Isherwood submitted that there was a material error of law. There had been no challenge to the dismissed decision. The Judge sent it back under paragraph 403. The first point was that the Appellant must make an application and as highlighted in the RFRL this was not done. The issue of statelessness was considered in the RFRL but what was also said was that the Appellant had not made an application as a stateless person. Even if that was not accepted it was for the Judge to consider it and not to remit to the Secretary of State. A valid application was stated to be required under the Rule. The Judge acknowledged this at paragraph 55.

6. I explained to the Appellant in clear terms what the Respondent's grounds were and why it was said that there was an error of law. The Appellant said that he did not want to deal with the Home Office. He said that the Home Office had given him the hardest time. He had been here for 19 years. He said he had made an application as a stateless person under paragraph 403 of the Immigration Rules and he produced the application made on 10 June 2016.

7. Ms Isherwood submitted that it was the Appellant's responsibility to raise all points and the requirement regarding application had to be met.

Discussion and Findings

8. The Appellant was in person before the First-tier Tribunal. There is no cross-appeal in relation to the asylum claim. The requirements for limited leave to remain as a stateless person are set out at paragraph 403 of the Immigration Rules and include a requirement that the Appellant make a valid application to the Secretary of State. It is common ground that by the time the appeal was before the First-tier Tribunal this had not been done. The Respondent considered the Appellant's claim to be stateless from paragraphs 44 to 57 of the reasons for refusal letter and stated at paragraph 55 that no valid application had been made. However, it is also stated that it was not accepted that the Appellant was stateless because he could return to Saudi Arabia where he had been born and lived from 1973 to 1997.

9. The questions to be determined in this appeal are firstly whether the First-tier Tribunal exceeded its powers in finding that the decision was not in accordance with the law because in the absence of a valid application the Respondent was not required to consider whether the Appellant should be granted leave as a stateless person and secondly, if a valid application was not necessary for the First-tier Tribunal to have jurisdiction, whether the First-tier Tribunal should have determined the issue rather than finding that the Respondent's decision was not in accordance with the law.

10. I have not been directed to any authority on this issue. However, it is clear, in my view that the clear wording of paragraph 403(a) cannot be by-passed. The Appellant had not made an application under paragraph 403 for limited leave to remain. The Respondent was therefore correct to highlight in the refusal letter that no such application had been made. Technically therefore there was no refusal under this paragraph. The First-tier Tribunal therefore erred in law in finding that the decision was not in accordance with the law and remained outstanding before the Respondent as the Respondent could not make a decision under paragraph 403 in the absence of an application.

11. I am fortified in my conclusion by the decision of the Presidential Panel in R (on the application of Semeda) v Secretary of State for the Home Department (statelessness; Pham [2015] UKSC 19 applied) IJR [2015] UKUT 00658 (IAC) which confirms the proactive duty of the Secretary of State in such cases :

17. The decision making process in all statelessness cases is overlaid by the mantle of public law. The principle of public law most obviously engaged is the requirement to identify and then take into account all relevant considerations. Linked to this is the Tameside principle:

"?It is for a court of law to determine whether it has been established that in reaching his decision ? [the Secretary of State] had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider ?

Or, put more compendiously, the question for the court is did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"
(per Lord Diplock in Secretary of State for Education and Science v Metropolitan Borough Council of Tameside [1977] AC 1014, at 1065b).

In the particular context of statelessness cases, it is appropriate to emphasise the latter part of Lord Diplock's seminal formulation: the decision maker must take reasonable steps to acquaint himself with the relevant information. In the evolution of public law during the four subsequent decades, this has sometimes been coined the "duty of enquiry". It is not an absolute duty. Rather, it imports the standard of reasonableness. In the present context, it coexists with, and gives emphasis to, the obligations of enquiry specifically imposed on the decision maker by the Secretary of State's policy guidance (supra).

12. There are clearly strong administrative reasons why an application in this sort of case is required. I am further fortified in my conclusion by the decision of the Court of Appeal in R (on the application of Weiss) v Secretary of State for the Home Department [2010] EWCA Civ 803 in which the Court held that in the absence of an application under paragraph 276B on the prescribed form the First-tier Tribunal could not make a decision on that paragraph.

13. In the circumstances, I find that the First-tier Tribunal erred in allowing the appeal as not in accordance with the law and outstanding before the Respondent for a proper decision to be made. The Tribunal had no jurisdiction to do so.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

The Upper Tribunal has no jurisdiction in this matter.

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.

Signed Dated 26 July 2016

Deputy Upper Tribunal Judge L J Murray