Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11399/2014
IA/01263/2015
IA/01266/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 26th June, 2016
Signed 7th July, 2016
On 10th August 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

w h H (FIRST NAMED RESPONDENT)
S L (second named respondent)
J L (THRD NAMED RESPONDENT)
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr M Diwnycz
For the Respondent: Ms Sarah Rogers, of Immigration Advice Centre (for the first respondent)
No representation for the second and third named respondents

DECISION AND REASONS

1. The appellant in this appeal is the Secretary of State for the Home Department and to avoid confusion I shall refer to her as being "the claimant".

2. The first named respondent is the husband of the second named respondent. The second named named respondent is the mother of the third named respondent.

3. All three respondents are citizens of the People's Republic of China. The first named respondent was born on [ ] 1985. He claimed to have arrived in the United Kingdom in September 2011, and claimed asylum on 15th November, 2013. His claim to asylum was refused by the claimant, who made a decision to remove the respondent as an illegal entrant by way of directions under paragraphs 8, 9 and 10 of Schedule 2 of the 1971 Immigration Act.

4. The second named respondent was born on [ ] 1983. She and the first named appellant have a son, J, who was born on [ ] 2013 and E who was born on [ ] 2015, who are dependants. The first named respondent is not the biological father of the third named respondent, but the third named respondent is the son of the second named respondent.

5. The second and third named respondents made application both within and outside the Immigration Rules to vary their leave to remain in the United Kingdom on 17th April 2014. On 9th December, 2014 the claimant refused both applications. They appealed to the First-tier Tribunal.

6. Dealing first with the first named respondent, when he received the decision of the claimant refusing his application he appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge Cox. Judge Cox allowed the first named respondent's appeal.

7. However, in his determination, at paragraph 31 Judge Buster Cox makes it clear that following the conclusion of the hearing he engaged in internet research for information on the Chengguan and says that as a result, he is satisfied that the first named respondent's account of the incident he claimed to have had with the Chengguan was consistent with background material.

8. The claimant sought and obtained permission to appeal on the basis that the judge's engaging in such independent research, amounted to an error of law on the part of the judge.

9. There were other challenges also, but at the hearing before me today Miss Rogers indicated that she was not going to seek to persuade me to uphold the determination which she agreed was flawed. She invited me to find that the claimant had been denied a fair hearing and to remit the hearing for hearing afresh by the First-tier Tribunal and by a different judge.

10. The Home Office Presenting Officer was content with that course.

11. In relation to the first named respondent's appeal, I find that there was a material error of law on the part of the First-tier Tribunal Judge in considering evidence not presented to him by either party, without drawing that evidence to the attention of both parties and seeking their submissions on it. The judge has considered evidence on which he has not heard submissions from either party and that is an error of law. If he was intent on doing his own research, he should have had the appeal relisted before him and supplied copies of the evidence he had found to the parties in order that their representatives could have the opportunity to make whatever appropriate submissions they wanted to make on it. As a result, I have concluded that his determination cannot stand and I set is aside.

The Second and Third Respondents

12. Turning now to the second and third respondents, following the Secretary of State's refusal of their application, they too appealed to the First-tier Tribunal and their appeal was heard by First-tier Tribunal Judge Saffer sitting in Bradford on 24th September, 2015. In a determination promulgated by Judge Saffer on 28th September, 2015, the judge purported to dismiss both the respondents' appeals under the Immigration Rules, but to allow both appeals on Article 8 grounds.

13. Judge Saffer was aware that the first named respondent's appeal had already been heard by the First-tier Tribunal and had been allowed.

14. The appellant sought permission to appeal, because in dealing with the respondents' claims, he failed to apply any of the provisions of Section 117 to the Article 8 assessment and failed to give sufficient reasons as to why the appellant's decision was considered to be disproportionate.

15. In reading the determination it was also clear to me that Judge Saffer appears to have allowed the appeals of the second and third respondents on the basis that earlier a judge had already allowed the appeal of the first named respondent. His determination gives the appearance at the very least of having been predicated on that basis. Of course, I have already set aside the appeal of the first named respondent.

16. At the hearing before me the second and third named respondents appeared in person unrepresented.

17. Fortunately, I had the services of a Mandarin interpreter and ensured that he and the second named respondent could understand each other. The second named respondent indicated that she did understand some English. The third named appellant and his mother had discussions with each other during the hearing.

18. I explained the purpose of the hearing and that it had been alleged by the Secretary of State that the determination of the First-tier Tribunal Judge contained errors of law, such that it meant that his determination should be set aside. I also explained that I had earlier set aside the determination in respect of the first named respondent. Given that the judge who heard the appeal of the second and third named respondents had proceeded on the basis that the first named respondent's appeal had been allowed, I explained that the determination was defective and that I was being asked to set it aside. I explained that the claimant believed that there were other difficulties with the determination also.

19. The second named respondent told me that she was happy for her appeal and that of her son's appeal to be reheard with her husband's appeal. She had no comment to make on the alleged errors of law. I told her that having read the determination and the grounds that I believed that there was merit in them and that the determination could not stand. She asked me to clarify who had made a mistake and I explained that it was not being alleged that she had made a mistake but instead that the judge had made a mistake. She appeared to be happy with my explanation and with my proposed decision. I explained that the appeals would be heard afresh by a different judge. I am satisfied that the second named respondent understood me throughout the hearing.

20. I am satisfied that the determination of Judge Saffer cannot stand. He considered the appeals of the second and third respondents in the light of decision of Judge Cox in the earlier appeal of the first named respondent. He could not have known that the decision of Judge Cox was defective and was correct in the circumstances to apply Tanveer Ahmed. Whilst the grounds assert that the judge has failed properly to consider the Article 8 claim under the Immigration Rules first, I believe that paragraphs 27, 28 and 29 demonstrate that in fact he did consider the entitlement of the respondents under the Immigration Rules and concluded that they did not fulfil any of them.

21. At paragraph 30 of the determination the judge noted that the first respondent's appeal had been allowed and that unless that decision were to be set aside, he would not be required to leave the United Kingdom and the children, if they were to remain with the second named respondent, would be separated from him for an indefinite period. He found that it would be in the best interests of the family to remain together as a unit and would be disproportionate to interfere with their family life despite the need to retain the integrity of immigration control and the burden on the public purse.

22. At paragraph 31 he said:

"I therefore accept that there are arguably good grounds for granting leave outside the Rules and compelling circumstances not sufficiently recognised under them and that it would be a disproportionate interference with the respect to which they are entitled regarding their family life to require them to leave while [the first named respondent] is entitled to remain here."

23. I believe that the judge has further erred in law by failing to give adequate reasons as to why the appellant's decision is disproportionate.

24. I have concluded that in order to prevent delay in disposing of these appeals the most appropriate course of action is for me to remit them for hearing afresh by the First-tier Tribunal by a judge other than Judge Saffer. They should be heard together, the parties or their representatives having already agreed to the appeals being linked. A Mandarin interpreter is required.

Summary of Decisions

25. All three appeals are remitted to the First-tier Tribunal for hearing afresh before judges other than Judge Buster Cox and Judge Saffer. It is respectfully suggested that three hours should be allowed for the hearing of the appeal and that a Mandarin interpreter is required.

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
Upper Tribunal Judge Chalkley

No fee is paid or payable and therefore there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley