Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13273/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd August 2016
On 6th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

the secretary of state for the home department
Appellant
and

M A
(aNONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr D Clark, Home Office Presenting Officer
For the Respondent: Ms V Easty, Counsel instructed by Messrs Sultan Lloyd Solicitors

DECISION AND REASONS
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.

1. The Secretary of State challenged the decision of First-tier Tribunal Judge Graham promulgated on 19th May 2016 whereby he purported to allow an appeal "to the limited extent that the matter is referred back to the Secretary of State for a lawful decision to be made".
2. The background to the appeal was that the appellant is a minor born on 28th January 2001 and a citizen of Egypt who claimed that at the age of 12 his parents passed away and thereafter his maternal uncle sent him to the UK. When he first came to the UK the appellant claimed he was a Syrian national. The appellant thereafter claimed that he was, in fact, from Egypt and he gave a variety of explanations as to why he was claiming asylum. He left Egypt in the summer of 2014 and travelled via Italy and France arriving in the UK on 23rd August 2014 and claimed asylum on the following day. He was the subject of an age assessment by the Northamptonshire Social Services on 3rd March 2015 and he was adjudged to be 14 years of age and born on 28th January 2001.
3. First-tier Tribunal Judge Graham noted that the appellant had appealed against the decision to refuse to grant him asylum under paragraph 336, humanitarian protection and protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms. That appeal was under Section 82 of the Nationality, Immigration and Asylum Act 2002.
4. The judge made limited findings and noted the key point made by the Home Office at paragraph 27 was that the appellant had an uncle in Egypt who took responsibility for his care following his father's death and that the Secretary of State did not accept that the appellant's claim that he had lost contact with the uncle in Egypt. The Secretary of State therefore found there were adequate reception facilities in place for the appellant to return there safely. The judge had this to say at paragraph 28:
"I am referred to the Home Office Guidelines at 17.7 UASC Leave which states the UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed. The guidelines refer to the best interests and duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 (at 17.8) and state: The availability of safe and adequate reception arrangements is only one factor to consider when deciding whether a person should be granted UASC leave. A full account needs to be given to the following:
The best interests of the child must be taken into account as a primary consideration in the decision; and
The duty to have regard to the need to safeguard and promote the welfare of the child in accordance with Section 55 and the statutory guidance that accompanies it ("Every child matters" - change for children).
The 1989 Convention on the Rights of the Child (UNCRC) is the main legal instrument on the protection of children. While the UNCRC neither offers a precise definition or explicitly outlines common factors of the best interests of the child, it stipulates that:
The best interests must be taken into account as a primary consideration for all other actions affecting children, whether undertaken by a public or private social welfare institution, courts of law, administrative authorities or legislative bodies."
5. The judge also noted paragraphs 33, 34, 35, 36 and 37:
"33. Importantly for this appeal, at 17.9 headed Outright Refusal the guidelines state that a decision to refuse outright must follow a detailed consideration of the above factors including how best interests under Section 55 duty has been assessed. The assessment of these factors must be reflected in the decision letter and the decision approved by a Senior Caseworker.
34. In the present case the Appellant was aged only fourteen years at the time of the interview and he was asked to talk about this situation in Egypt when he was thirteen years of age. I am satisfied that any inconsistencies regarding the date he last had content with his uncle in Egypt must be considered whilst taking account of the Appellant's age. Such factors as how the questions were asked; whether they were asked in rapid succession, etc. should be considered. The fact that the Appellant was accompanied by a representative of the Appellant's legal firm and that the Appellant or the representative did not complain about the interview at the time does not detract from these factors which should be considered.
35. Regarding the Respondent's decision not to grant discretionary leave I am satisfied that the Respondent has not made contact with the Appellant's uncle in Egypt and therefore I have referred to the Home Office guidance at 17.8 which lists a number of factors which the Respondent ought to take account of before making an outright refusal of discretionary leave.
36. The Appellant has been in the United Kingdom for two years, is in education here and age wise he is nearing the end of adolescence and therefore at an important stage. He has integrated into life in the United Kingdom and removing him to Egypt at this time would amount to a serious disruption in his life. I am satisfied that the case worker for the Secretary of State has not considered the correct test before reaching an outright refusal decision in this case.
37. I have concluded that the Respondent's decision was not in accordance with the law. It suffered from a defect in procedure. The effect of this determination in relation to this element of the Secretary of State's decision is accordingly that the decision is quashed and the application remains outstanding awaiting a lawful decision."
6. The nub of this is that the judge was satisfied that the respondent had not made contact with the appellant's uncle in Egypt and the judge noted the number of factors that should have been taken into account before making an outright refusal of discretionary leave. The judge, as a consequence, allowed the matter to the limited extent that it was returned to the Secretary of State for a decision to be made.
7. The challenge by the Secretary of State was made on the basis that under the latest version of Section 86 of the 2002 Nationality, Immigration and Asylum Act the Judge of the First-tier Tribunal is simply required to determine an appeal. Section 86 must be read in conjunction with Section 84 such that a judge could only determine those matters which are able to be raised that is to say that the judge could only allow the appeal if the removal would breach the United Kingdom's obligations under the Refugee Convention, breached the United Kingdom's obligations in relation to persons eligible for humanitarian protection or was unlawful under Section 6 of the Human Rights Act 1998.
8. In this case the judge simply did not engage with the permitted grounds and made a finding that was not open to him under the new statutory framework.
Conclusions
9. It is correct to say that indeed the permission to appeal grant states that the decision was dated 13th November 2015 and it was arguable that the Tribunal exceeded its jurisdiction in purporting to allow the appeal on the ground that it was not in accordance with the law.
10. Section 86 with the rubric 'Determination of appeal' reads as follows
(1) This section applies on an appeal under section 82(1)
(2) the Tribunal must determine
(a) any matter raised as a ground of appeal?, and
(b) any matter with Section 85 requires it to consider
11. The grounds of appeal are set out in Section 84, and, even with the consideration of Section 85 are limited to those which constitute a ground as listed in Section 84. The grounds in Section 84 relate to the removal of the appellant from the UK in breach of the Refugee Convention, removal in breach of obligations in relation to humanitarian protection and whether removal is unlawful under Section 6 of the Human Rights Act 1998. Gone is the ground of appeal under Section 84(1)(f) that the decision is not in accordance with the law.
12. Ms Easty made a valiant attempt to persuade me that the decision contained no error of law. I was referred to the various decisions of Katsonga ("Slip Rules"; FtT's general powers) [2016] UKUT 228 (IAC) which confirmed that following the repeal by the 2014 Act of sub-Section (3) to (6) of Section 86 of the 2002 Act the First-tier Tribunal appeared to have no duty or power to allow or dismiss an appeal.
13. That said Ms Easty submitted that the decision of Greenwood No 2 confirmed that although remittal to the Secretary of State was not one of the disposal powers now available to the First-tier Tribunal those powers were threefold, first to allow the appeal, second to dismiss the appeal or thirdly to make a decision to the effect whereof is that the Secretary of State either must or may make a fresh decision.
14. I note Ms Easty's submission was that the decision of the judge fell within the third category. If I was not with her she requested that I remit the matter to the First-tier Tribunal. Ms Easty stated that what was important was the effect of the judge's decision and the judge did in effect make a factual finding to the effect that the appellant was not in contact with his uncle. She urged me to follow Greenwood No 2 (paragraph 398 considered) [2015] UKUT 00629 and effectively find that the decision fell into the category whereby the Secretary of State must make a new decision.
15. Mr Clark, by contrast, was clear that the judge had made no effective findings in relation to the matter under appeal.
16. For the purposes of this decision it is worth repeating paragraph 17 of Greenwood No 1 which pondered on the new Section 86 of the Nationality and Asylum Act in relation to the determination of appeal and had this to say:
"I think it is in general doubtful whether the First-tier Tribunal has jurisdiction to remit a matter to a decision-maker. It has a power to allow or dismiss an appeal; and if allowing an appeal it has power to give directions, with which the Secretary of State must comply. It does not formally have the power to quash the decision under appeal, but it is well understood that a decision of the Tribunal to the effect that the decision was not in accordance with the law prevents the decision-maker from relying on it or acting on it so that it is to that extent of no effect. In those circumstances, if the decision is one which results from an application made by an individual the position is that the application is outstanding awaiting a lawful decision. No remittal is necessary. ..."
At paragraph 18:
"If on the other hand the decision is one which results not from an application but from the Secretary of State's own motion (for example deportation, removal, curtailment) the Tribunal's determination that the decision was an unlawful one simply leaves the matter open as it was before ... it is not the Tribunal's function to suggest that such action ought to be reinitiated."
17. As noted in the subsequent decision of Greenwood No 2 at the headnote
(iii) Remittal to the Secretary of State is not one of the disposal powers available to the Ftt which are threefold, to allow the appeal to dismiss the appeal or to make a decision the effect whereof is that the Secretary of State either must or may make a fresh decision.
At paragraph 21, the President considered that the option to allow an appeal and simultaneously to make directions in order to give effective decision as per Section 87 of the 2002 Act had been repealed and thus Greenwood No 1 needed to be read with that adjustment. The President stated at [21] of Greenwood No 2
"We consider it clear that prior to the most recent amendment of section 86, the FtT, in determining statutory appeals, had two main choices viz to allow or dismiss the appeal. A third and fourth option were also available. The third option was to allow an appeal and, simultaneously, to make directions in order to give effect to its decision, per section 87 of the 2002 Act as amended. However, this has been repealed by paragraph 37 of Schedule 9 to the Immigration Act 2014, effective from 20 October 2014. Thus [17] of Greenwood (Automatic Deportation: Order of Events) [2014] UKUT 342 (IAC) , which predated this statutory development, must be read with this adjustment. The fourth possible outcome of an appeal to the FtT, as Greenwood noted, was the following. If the effect of the Tribunal's decision was to conclude that the decision of the Secretary of State under appeal was unlawful and the Tribunal did not substitute another decision:
(a) if the decision of the Secretary of State involved a determination of an application made by the litigant, a lawful decision remains to be made by the Secretary of State - and it is preferable that the FtT say so clearly;
(b) alternatively, if the challenge in the appeal was to an "own motion" decision of the Secretary of State, it would be a matter for the Secretary of State to decide whether a further decision should be made in the wake of the FtT's decision.
This is, in effect, a declaratory decision."
18. It would seem that there is a third option which would appear to be that the Tribunal must make a decision
"the effect whereof is that the Secretary of State either must or may make a fresh decision where the Tribunal's decision was to conclude that the decision of the Secretary of State under appeal was unlawful".
Despite Ms Easty's valiant attempts to persuade me otherwise, that is not the language in or the effect of the decision promulgated by First-tier Tribunal Judge Graham. At paragraph 37 the First-tier Tribunal Judge concluded that
"The respondent's decision was not in accordance with the law. It suffered from a defect in procedure".
That may be permissible, however, he then went on to state
"The effect of this determination in relation to this element of the Secretary of State's decision is accordingly that the decision is quashed and the application remains outstanding awaiting a lawful decision".
The judge then at paragraph 38 recorded that in effect
"The appeal was allowed to the limited extent that the matter is returned to the Secretary of State for a decision to be made".
19. To all intents and purposes this is quashing the decision and remitting the matter to the First-tier Tribunal which is contrary to the provisions as illustrated in Greenwood No 2. That is a material error of law. Further, the judge should have made findings and then determined the issue in accordance with Section 86 of the Nationality Immigration and Asylum Act 2002.
20. The judge records at [27] that
'The Home Office rely on the Appellant's evidence that he has an uncle in Egypt who took responsibility for his care following his parents' death. The Secretary of State does not accept the Appellant's claim that he has lost contact with the uncle in Egypt and therefore finds that there are adequate reception arrangements in place for the Appellant to return safely to Egypt'.
The decision then concentrates on the duty under S55 of the Borders Citizenship and Immigration Act 2009 and the departure of the Secretary of State from her policy but in relation to the key question of contact with the uncle there are effectively none or very limited findings. The judge records at [35]
'I am satisfied that the respondent has not made contact with the Appellant's uncle in Egypt'.
21. There are no findings about the credibility or plausibility of the appellant losing or regaining contact with the uncle. I am therefore mindful of the very limited fact-findings that were undertaken in relation to this decision and I am persuaded that the matter should indeed be returned to the Tribunal of the First-tier in order that a determination of the full facts in relation to the matters under appeal are fully considered and established. This would be required even in order to follow the third option described in Greenwood No 2.
22. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

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

Upper Tribunal Judge Rimington