Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12348/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th November 2016
On 23rd November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

The SECRETARY OF STATE FOR THE HOME Department
Appellant
and

MRS HELEY [B]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr M Bashir of Bashir Consultancy, Bradford

DECISION AND REASONS
1. Mrs [B] is a citizen of Bangladesh whose date of birth is recorded as 15th December 1965. On 10th March 2015 she made application for international protection as a refugee. On 7th September 2015 a decision was made by the Secretary of State to refuse that application and so she appealed.
2. On 23rd September 2016 her appeal was heard by Judge of the First-tier Tribunal Monaghan, sitting at Bradford. In a decision dated 27th September 2016 Judge Monaghan dismissed the appeal on asylum grounds, humanitarian protection grounds and on human rights grounds. On its face therefore it would appear that she had disposed of the appeal in its entirety. However, there is some confusion caused by the manner in which she has dealt with this appeal because at paragraph 55 she allowed the appeal on the basis that the decision of the Secretary of State was not in accordance with the law: "The Respondent [in this case the Secretary of State] having failed to take into account her own policy guidance in respect of the grant of limited leave outside the Immigration Rules". That is to be read together with paragraph 51 of the decision in which Judge Monaghan directed that the matter was to be remitted to the Secretary of State for her to make a further assessment and in so doing to take into account the findings of fact made in the decision. (By "the decision", Judge Monaghan was referring to her own decision).
3. Not content with the manner in which the judge dealt with this matter, by Notice dated 12th October 2016 the Secretary of State made application for permission to appeal to the Upper Tribunal. The grounds take the point that it was not open to the judge to allow the appeal to the extent that it was not in accordance with the law and then remit to the Secretary of State to reconsider her own policy, but it is accepted that it was open to the judge to deal with the matter as an Article 8 appeal and the Secretary of State states in terms, in the grounds, "It is not clear as to why the First-tier Tribunal Judge did not proceed in this way".
4. On 24th October 2016 Designated Judge of the First-tier Tribunal granted permission thus the matter comes before me.
5. There was some discussion around paragraph 17 of the guidance in the case of Greenwood (automatic deportation: order of events) [2014] UKUT 00342 which on its face appears to provide some authority for the judge to proceed as she did, namely to allow the appeal on the basis that the decision was not in accordance with the law and then follow up with directions. What has caused the confusion in this case is that the judge has dismissed the appeal on human rights grounds but also allowed the appeal as not in accordance with the law.
6. Mr Bashir placed before me guidance in the case of Ukus (discretion: when reviewable) [2012] UKUT 00307(IAC). That is a decision which predates the Immigration Act 2014 (Commencement etc.) Order 2014 but it does suggest a way in which the matter might have proceeded namely for the judge to say to the Secretary of State that she had not completed her task. The judge has general management powers under the Procedure Rules 2014 and so it was open to her, if she thought it appropriate, to adjourn the matter part heard and invite, if not direct, the Secretary of State to consider the point and then return on a future date, if so advised, with any amendments, to the substantive decision. That was not done.
7. Both parties before me agreed that there is an error of law. The issue then was what to do. It is not suggested that the decision in relation to asylum or humanitarian protection should be interfered with by either party.
8. The Secretary of State in the second paragraph of the grounds concedes that it was open to the judge to deal with Article 8 in a different way and so with the consent of both parties, I having set aside the decision of the judge in relation to human rights, and her having allowed the decision as not in accordance with the law, remit this matter not to the Secretary of State but to the judge herself to "finish the job" which was before her".
9. However given that the issue remains live, I direct the Secretary of State to consider her own policy as directed by Judge Monaghan so that a decision can then be made whether or not to allow the appeal.
Directions (made by consent)
10. The Secretary of State shall within 28 days make a further assessment of Mrs [B]'s case as directed at paragraph 51 of Judge Monaghan's decision of 27th September 2016.
11. The Secretary of State shall notify in writing the Tribunal and Mrs [B]'s representatives of such decision as she may make having made that further assessment.
12. So soon as reasonably practicable thereafter this matter shall be listed in the First-tier Tribunal before Judge Monaghan in order that she can resolve the outstanding issues.
13. For the avoidance of doubt this decision and the directions made under it were by consent and this decision was dictated in open hearing in the presence of both representatives. I invited both parties to inform me if there was anything they wished to add. Neither had anything that they wished to say.

Notice of Decision

The decision of the First-tier Tribunal in respect of asylum and humanitarian protection stands. However there was an error of law in relation to the manner in which the appeal was allowed as not being in accordance with the law and being dismissed on human rights grounds. Therefore for the avoidance of doubt paragraphs 55 and 58 of the decision of Judge Monaghan of 27th September 2016 are set aside to be remade in the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Zucker