Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: DA/01746/2014

the immigration Acts

Heard at: Field House
Decision & Reasons promulgated
On 25 February 2019
On 3 April 2019

Before

Upper Tribunal Judge Gill

Between

The Secretary of State for the Home Department
Appellant
And

A R (Jamaica)
(ANONYMITY ORDER MADE)
Respondent

Anonymity

I make an order under r.14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant. No report of these proceedings shall directly or indirectly identify him. This direction applies to both the appellant and to the respondent and all other persons. Failure to comply with this direction could lead to contempt of court proceedings.

The parties at liberty to apply to discharge this order, with reasons.

Representation:
For the appellant: Ms K Pal, Senior Home Office Presenting Officer.
For the respondent: Ms H Brown, of Counsel, instructed by Virgo Consultancy Services Ltd.

Decision and Directions
1. By an Order sealed on 18 December 2017, the Court of Appeal allowed the Secretary of State's appeal and remitted the matter to the Upper Tribunal for reconsideration of the appeal of A R (Jamaica) (hereafter the "claimant").
2. The appeal was listed for a case management review hearing on 25 February 2019. At the hearing, the parties agreed that the appeal should be remitted to the First-tier Tribunal for a fresh hearing on all issues.
3. At the hearing on 25 February 2019, I raised the question whether Judge Holder had incorrectly applied the version of the Immigration Rules that was in force immediately prior to 28 February 2014 (the "Previous Rules") and whether he should have applied the version of the Immigration Rules that was brought into force on 28 July 2014 by the Immigration Act 2014 (the "Current Rules").
4. Ms Pal informed me that this was part of the Secretary of State's grounds of appeal to the Court of Appeal but she was unable to produce a copy of the Statement of Reasons. Ms Brown submitted that the applicable rules were the Previous Rules. I issued directions for both parties to submit skeleton arguments.
5. Subsequently, the following came to my attention:
(i) Para A362 of the Immigration Rules which states:
"A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served."
(ii) Para 9 of the judgment of the Court of Appeal in NA (Pakistan) [2016] EWCA Civ 662 which, insofar as relevant, reads:
"On 28 July 2014 the Immigration Act 2014 ("the 2014 Act") came into force. That Act applies to all decisions taken by the Secretary of State or a tribunal on or after that date: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 at [12]."
6. I therefore issued further Directions dated 27 February 2019 by which I drew the parties attention to (i) and (ii) above, informed them that the Upper Tribunal was bound by the judgment of the Court of Appeal and therefore that I had taken the view that the applicable rules were the Current Rules. In such circumstances, the Direction given at the hearing on 25 February 2019 for the Secretary of State to serve a skeleton argument was withdrawn and a new direction given that, if the claimant still contended that the Rules applicable to his case were the Previous Rules, he was to serve a skeleton argument by 11 March 2019.
7. The claimant has not filed any skeleton argument to date.
8. In view of the provisions of para A362 of the Immigration Rules and para 9 of the judgment of the Court of Appeal in NA (Pakistan), which judgment is binding on the First-tier Tribunal and the Upper Tribunal, I have concluded that the Current Rules apply in determining the claimant's Article 8 claim, and not the Previous Rules.
9. I agree with the parties that this appeal should be remitted to the First-tier Tribunal for a fresh hearing on the merits. My reasons are as follows:
(i) Given that the claimant's appeal was allowed by Judge Holder, a remittal to the First-tier Tribunal is the right course of action having regard to the Court of Appeal's judgment in JD (Congo) & Others [2012] EWCA Civ 327;
(ii) In any event, Judge Holder incorrectly considered the Previous Rules in his assessment of the claimant's Article 8 claim. Accordingly, there has been no assessment of the claimant's Article 8 under the Current Rules.
10. The decision of Judge Holder is set aside in its entirety, if it has not already been set aside by the order of the Court of Appeal. The appeal is remitted to the First-tier Tribunal for a fresh hearing on all issues by a judge other than Judge Holder. The Rules to be applied in determining the claimant's Article 8 claim are the Current Rules.

Notice of Decision
The decision of the First-tier Tribunal involved the making of errors on points of law such that the decision is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing on all issues by a judge other than Judge of the First-tier Tribunal Holder.

Upper Tribunal Judge Gill Date: 1 April 2019