Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12197/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 January 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

G S
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms G Capel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, G S, was born in 1990 and is a male citizen of India. The appellant had appealed to the First-tier Tribunal (Judge Thornton) against the decision of the respondent dated 1 September 2015 refusing his asylum and human rights claim. The First-tier Tribunal (in a decision promulgated on 12 September 2016) dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The respondent does not oppose the appeal. Paragraph 32 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provides as follows:
Setting aside a decision which disposes of proceedings
32.-(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a
decision, and re-make the decision, or the relevant part of it, if-
(a) the Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are-
(a) a document relating to the proceedings was not provided to, or was not received at an
appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not provided to the Tribunal at an appropriate
time;
(c) a party, or a party's representative, was not present at a hearing related to the
proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
(3) An application for a decision, or part of a decision, to be set aside under paragraph (1) must be
made-
(a) if the appellant is outside the United Kingdom, within 28 days; or
(b) in any other case, within 14 days,
of the date on which the party was sent the notice of decision.

3. Following the decision of the Court of Appeal in Lord Chancellor v Detention Action [2015] EWCA Civ 840, the President of the First-tier Tribunal has directed that a First-tier Tribunal decision made under the Fast Track provisions of the 2014 Rules should be set aside under paragraph 32. The parties agree that an application under paragraph 32 was made at the First-tier Tribunal hearing before Judge Thornton by Counsel for the appellant, Ms N Wilkins. However, Judge Thornton does not refer to that application (which I am told she refused at the hearing) in the decision. Judge Thornton was wrong in law not to refer to the application at all and, in the light of the jurisprudence to refuse the application and to refrain from setting aside an earlier decision of the First-tier Tribunal made under the Fast Track provisions by Judge O'Garro which is dated 25 June 2014. In the circumstances, Judge Thornton's decision cannot stand. I set aside her decision. There needs to be a new fact-finding exercise in the First-tier Tribunal. I was also invited by Ms Capel, of Counsel, for the appellant to set aside Judge O'Garro's decision under paragraph 32 of the 2014 Rules. Mr Armstrong, for the respondent, did not object to my so doing. I therefore set aside Judge O'Garro's decision dated 25 June 2014.

Notice of Decision
(1) The decision of the First-tier Tribunal dated 25 June 2014 is set aside.
(2) The decision of the First-tier Tribunal dated 12 September 2016 is set aside. None of the findings of fact shall stand.
(3) The appeal is returned to the First-tier Tribunal (not Judges O'Garro and Thornton) for that Tribunal to remake the decision.
(4) Listing directions: list for a Case Management Review (CMR) at Bradford First-tier Tribunal on the first available date.

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.

Signed Date 2 February 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

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

Signed Date 2 February 2017

Upper Tribunal Judge Clive Lane