Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11890/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 3rd May 2016
On 18th May 2016

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

FAKIR HAMAIMA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Draycott of Counsel instructed by Paragon Law
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. We shall continue to refer to the parties as they were before the First-tier Tribunal, this matter having reached the Upper Tribunal following the grant of permissions to appeal to both the Secretary of State and the appellant.
Background
2. This appeal first came before the Upper Tribunal on 1st February 2016 when permission had been granted to the respondent to appeal against the human rights element of the decision of Judge of the First-tier Tribunal J S Law in which he dismissed the appeal on asylum and humanitarian protection grounds but allowed it on human rights grounds. At the first hearing in the Upper Tribunal representatives indicated that the appellant had also submitted an application for leave to appeal against the First-tier Judge's decision to dismiss the asylum and humanitarian protection claims but this appeared to have been overlooked by the Tribunal. The Upper Tribunal hearing was, therefore, adjourned in order that the appellant's application could be considered. Permission was granted to the appellant on 2nd February 2016.
3. The matter therefore came before us on the basis that there were arguable errors of law in respect of the asylum, humanitarian protection and human rights decisions.
Grounds and submissions
4. The grounds of application by the respondent contend that the approach to the Article 8 assessment is flawed because "compelling circumstances" not recognised by the Immigration Rules had not been identified before the judge proceeded to consider human rights issues outside those Rules. In particular the First-tier Judge had not identified circumstances which would lead to an unjustifiably harsh outcome, an approach which was endorsed by the Court of Appeal in Singh [2015] EWCA Civ 74. The grounds further contend that the Tribunal failed to consider the statutorily relevant considerations set out in Section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) when assessing the proportionality of the Article 8 claim. Weight should not have been given to a private life established when a person's immigration status was precarious or unlawful. Permission to appeal to the Upper Tribunal was granted on the basis of this latter aspect of the grounds.
5. As to the appellant's grounds of application these take issue with the judge's reliance upon reasons given in an earlier decision of Designated Judge Coates which had been predicated upon the rejection of the appellant's Iraqi nationality when such nationality had been accepted at the hearing before Judge Law. Further it is argued that the judge failed to engage with the substance of expert reports put before him, particularly that of Dr Alan George, covering relevant matters relating to family support, kidnapping, general violence, adequacy of protection and internal flight.
6. Permission was granted to the appellant because it was considered arguable that the decision, notably in paragraphs 22 and 23, showed that Judge Law had reached his conclusions about credibility because of the findings of Designated Judge Coates but without conducting an analysis of his own and overlooking the fact that the earlier decision had been based upon an adverse finding of nationality when Judge Law accepted that the appellant was an Iraqi national. It was also considered arguable that the judge had failed to have proper regard to the expert evidence.
7. At the hearing before us Mr Draycott contended that the human rights decision should stand. He submitted that the factual background to the appellant's claims was relevant: the appellant had left Iraq when he was 6 years of age but did not arrive in the United Kingdom until he was 13. There was no evidence that the appellant had contact with anyone in Iraq. Additionally, the appellant's application to remain was made in time during the period of concessionary leave granted to him. He emphasised that, at the date of hearing before the First-tier Tribunal, the appellant was only two months away from having spent six years' discretionary leave in this country which, with reference to the respondent's policy, would have given an entitlement to indefinite leave to remain. The appellant now spoke fluent English and was working as a paid apprentice even if currently off sick. Mr Draycott suggested that the judge had shown, in paragraphs 14 and 20, that he was aware of the precariousness of the appellant's position and also had shown a grasp of evidence relevant to the factors set out in Section 117B. He asserted that there was enough in the decision to enable the judge to reach a favourable conclusion on human rights issues.
8. Mr McVeety submitted that the reference to precariousness had not been built into the judge's proportionality decision. He also commented that the judge had failed to consider the application of the Rules, particularly private life under paragraph 276ADE. The judge had worked on the erroneous assumption that the Rules did not apply.
Error on a point of law
9. After considering the matter for a few moments, we decided that the decision showed the errors on points of law identified in the grounds and that, in view of the need to re-hear the appeal on all issues, it would be appropriate to remit it for hearing afresh before the First-tier Tribunal sitting at Stoke. In reaching that conclusion we satisfied ourselves that the provisions of paragraph 7.2(b) of the Practice Statements of the Senior President of Tribunals dated 25th September 2012 had application. The reasons for our conclusions now follow.
10. The decision to reject the asylum and humanitarian protection decision was reached by Judge Law after placing reliance upon the earlier decision of Designated Judge Coates applying Devaseelan guidance. However, that approach was flawed because the First-tier Judge appears to have overlooked the fact that Designated Judge Coates reached his adverse credibility findings on a different evidential basis namely that the appellant had not shown that he was from Iraq. Yet Judge Law found (paragraph 31) that the appellant is an Iraqi national. That conclusion also contradicts the finding of the judge at paragraph 22 that he had "heard nothing that would challenge the decision of the previous judge".
11. Additionally, whilst Judge Law was clearly aware of the expert evidence from both Dr George and Julia Guest he appears to have overlooked the fact (paragraph 30) that Dr George's report had not been submitted at the earlier hearing before Designated Judge Coates. So, whilst the decision of the Designated Judge Coates was a start point, it was incumbent upon Judge Law to give detailed consideration to Dr George's report before placing reliance on the earlier decision in order to reach his adverse credibility findings. This was evidently not done as there is no detailed reference to expert evidence in any part of the findings of the judge from paragraph 20 onwards. The decision in relation to the asylum and humanitarian protection claims therefore contains material errors on points of law.
12. As to the submission by Mr Draycott that the human rights decision can stand we conclude that this, also, is flawed. The approach to such claims, as recommended by the Court of Appeal in SS (Congo) [2015] EWCA Civ 387, was not followed by the judge in order to identify any compelling circumstances not sufficiently recognised under the Immigration Rules to justify a grant of leave to remain. The proper approach is always to first identify the substantive content of the relevant Immigration Rules to see if a claimant satisfies those conditions and to assess the force of the public interest expressed in the Rules. The judge failed to consider whether, for example, the provisions of paragraph 276ADE might apply to the appellant particularly under sub-paragraph (vi) on the basis that there would be significant obstacles to the appellant's integration into Iraq if required to leave the UK.
13. We do not agree with Mr Draycott's contention that, although not referred to specifically, the judge considered the factors set out in Section 117B of the 2002 Act. Although, in that respect, Mr Draycott places reliance upon the decision of the Upper Tribunal in Dube (Ss.117A-117D) [2015] UKUT 00090 (IAC), the decision does not show that the judge had, actually, applied the relevant factors in Section 117B before reaching his decision on human rights issues. The precariousness of the appellant's position is not addressed. On this basis the human rights decision also shows an error on a point of law.
Notice of Decision
14. The decision of the First-tier Tribunal shows errors on points of law such that it should be re-made. It is appropriate, having regard to the Practice Statements of the Senior President of Tribunals of 25th September 2012 at paragraph 7.2, that the appeal should be remitted to the First-tier Tribunal for hearing afresh. That is because of the need for the evidence to be heard again and fresh findings reached upon it.
Anonymity
15. Anonymity was not requested before the Upper Tribunal nor was a direction made by the First-tier Tribunal. We do not consider that an anonymity direction is appropriate.
DIRECTIONS
1. The appeal is remitted to the First-tier Tribunal sitting at Stoke for hearing afresh on a date to be specified by the Resident Judge.
2. The hearing should not take place before Judge J S Law or Designated Judge Coates.
3. The time estimate for the hearing is three hours.
4. No interpreter will be required for the hearing unless representatives indicate to the contrary.

Signed Date 18th May 2016

Deputy Upper Tribunal Judge Garrett