Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11286/2015

THE IMMIGRATION ACTS

Heard at Hill Street, Birmingham
Decision & Reasons Promulgated
On 27 February 2017
On 5 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAID NASIR
ANONYMITY DIRECTION NOT MADE
Respondent

Representation:
For the Respondent: Mr B Bedford, Counsel instructed by Sultan Lloyd Solicitors
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Ferguson whereby he had allowed the Appellant’s appeal on Article 8 grounds pursuant to Appendix FM of the Immigration Rules. Mr Nasir had been the Appellant before the First-tier Tribunal and to ease following this decision I shall continue to refer to him as the Appellant, albeit it is the Secretary of State who brings this appeal. The Appellant had also appealed against the Secretary of State’s decision to refuse his protection claim. The Judge at the First-tier Tribunal had comprehensively dismissed that claim. There has been no permission granted to the Appellant in respect of that matter and so it remains dismissed. I am only concerned with Article 8.
2. The Secretary of State’s grounds were somewhat discursive, but Mr Mills was able to summarise them at the hearing before me to contend that the Appellant’s fiancée was not his partner and that therefore the simple fact was that the Immigration Rules could not be met. Further, the Appellant could not meet the requirements of “insurmountable obstacles”. The Sponsor was British, but she had an Afghan background. The Judge should have considered, when assessing the balance of factors, that this was an Appellant who had fabricated an asylum claim. For example, he had made up threats from the Taliban and others. He said that there was a clear error of law in respect of Appendix FM, but in all the circumstances it is not at all clear that the appeal could have succeeded before the Judge in respect of Article 8 ECHR. Mr Mills said I should remit the Article 8 matter to the First-tier Tribunal for re-hearing.
3. Mr Bedford was without a bundle and so the papers were provided to him. When he was ready to proceed, and having heard the submissions from Mr Mills, he said that in view of the suggestion from Mr Mills that the matter be remitted to the First-tier Tribunal, he agreed as there was a plain error of law in the Judge’s decision. The matter in respect of Article 8 outside of the Rules needed to be remitted to the First-tier Tribunal as there needed to be a determination as to whether there were insurmountable obstacles. He was thereby effectively conceding the Secretary of State’s appeal.
4. For the reasons outlined briefly on ex tempore basis, when I allowed the Secretary of State’s appeal and having considered the grounds of appeal, it is clear that the Judge did materially err in law on the basis of the grounds submitted. In view of the concession on behalf of the Appellant, there is no need for there to be a detailed decision. It was a concession properly made on behalf of Mr Nasir.
5. There shall be a re-hearing before the First-tier Tribunal. For the avoidance of doubt the protection claim shall remain dismissed. The adverse findings of fact made by the Judge are preserved. The only issue to be the subject of the remitted hearing shall be Article 8 outside of the Rules.

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 in respect of Article 8 outside of the Rules with the preserved findings referred to at paragraph 5 above. The Protection Claim shall remain dismissed.
There shall be a re-hearing at the First-tier Tribunal
No anonymity direction is made.

Signed Date 20 March 2017

Deputy Upper Tribunal Judge Mahmood