Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00007/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 December 2016
On 24 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR ARMAND FERUNI
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Ms J Isherwood, Home Office Presenting Officer
For the Respondent: Mr. C Jacobs, Counsel, instructed by Kilby Jones Solicitors LLP

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Twydell promulgated on 20th October 2016. The appellant before me is the Secretary of State for the Home Department and the respondent to this appeal, is Mr Feruni. However, for ease of reference, in the course of this determination I shall adopt the parties' status as it was before the First-tier Tribunal. I shall in this decision, refer to Mr Feruni as the appellant, and the Secretary of State as the respondent.
2. The underlying decision that was the subject of the appeal before the First-tier Tribunal was the decision of the respondent dated 8th June 2016. That was a decision to deprive the appellant of British citizenship. The respondent set out the background to her decision at paragraphs [2] to [9] of her decision letter. The respondent's letter sets out the appellant's immigration history and paragraph [10] the letter states:
"You failed to declare your previous identity, residence and marriage in the UK on your application form for British citizenship and therefore this information wasn't available to the caseworker at the time they granted you British citizenship. Had this information been available to the caseworker they would have refused you British citizenship as you would not have met the requirement for good character."
3. The appellant had originally entered the UK in 1999 using the identity, Besim Jashari, claiming that he was born in Kosovo on 4th May 1973. He was granted 12 months' exceptional leave to remain on 3rd September 1999. The appellant then used the identity, Armand Feruni, born in Albania on 10th May 1975 to apply for entry clearance as a spouse. He was granted entry clearance for two years and following the grant of indefinite leave to remain, secured British Citizenship in that identity.
4. A copy of the appellant's application for naturalisation as a British Citizen is in the papers before me and was before the First-tier Tribunal at Annex H of the respondent's bundle. The application form asks at question 1.1; - "Please give previous Immigration and Nationality Directorate or Border and Immigration Agency or UKBA reference numbers". No such information was provided by the appellant. The relevant box was left blank by the appellant. The form goes on to ask at question 1.8; "If you are or have ever been known by any name or names apart from those mentioned above, please give details here.". Again, no such information was provided by the appellant and the relevant box was left blank by the appellant. Further on, at section 1.37 of the application form the appellant was asked to provide the "full name or previous husband or wife or civil partner". In answer, the appellant noted some information about a previous relationship.
5. There was plainly an issue between the parties as to whether the disclosure of information as to the previous identity used by the appellant would have made a difference to the outcome of his application for naturalisation as a British citizen. That is clear from the terms of paragraph [10] of the respondent's decision letter.
The decision of the First-tier Tribunal
6. The decision of the First-tier Tribunal Judge, is very brief. The First-tier Tribunal Judge sets out at paragraphs [3] to [5] of her decision, the conduct of the proceedings and the submissions made on behalf of the parties. The decision itself is dealt with in the briefest terms and simply says this:
"In light of the submissions made by the appellant relating to Annex D, Chapter 18 of the Nationality Instructions as detailed in the appellant's representative's skeleton argument set out above, I allow this appeal."
7. The First-tier Tribunal Judge had before her a detailed and comprehensive skeleton argument submitted on behalf of the appellant and settled by the appellant's Counsel. That referred to the Nationality and Immigration Directorate's Instructions as they were, in 2009 when the appellant made his application for naturalisation as a British Citizen. The difficulty is that when one reads the decision of the First-tier Tribunal, beyond the reference to the 2009 instructions, it is difficult establish the basis upon which the Judge came to her decision. There are no findings of fact. Findings of fact are likely to have been of some importance. There was a letter before the First-tier Tribunal Judge from Karis Law dated 9th May 2006, which accompanied the application made by the appellant for entry clearance to join his spouse. In that covering letter there was full disclosure of the appellant's past immigration history, and unsavoury as that might have been, the Judge does not appear to engage with that letter, or to consider the matters set out, in light of what was said by the respondent at paragraph [10] of the respondent's decision letter.
8. The respondent's grounds of appeal are twofold. First, the Judge erred in relying upon the 2009 Nationality Instructions as the basis for allowing the appellant's appeal against the decision to deprive the appellant of his British citizenship. Second, the Judge failed to properly outline the law and give any reasons as to why the submissions made on behalf of the appellant were accepted without any consideration of the respondent's case that the disclosure of information as to the previous identity used by the appellant would have made a difference to the outcome of his application for naturalisation as a British citizen. The respondent had stated that had this information been available to the caseworker they would have refused the appellant British citizenship as he would not have met the requirement for good character.
9. It is now well established that what is required in a decision is that the reasons provided must give sufficient detail to show the parties and the appellate Tribunal, the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented.
10. In R (Iran) & Ors -v- SSHD [2005] EWCA Civ 982, the Court of Appeal drew together the threads of the approach to be adopted in cases where it is claimed that there is an error of law in the Tribunal's approach to the evidence. Lord Justice Brooke confirmed at [90] that a decision should not be set aside for inadequacy of reasons unless the Judge failed to identify and record the matters that were critical to the decision on material issues, in such a way that the appellate Tribunal was unable to understand why the Judge reached that decision.
11. There was plainly a duty upon the Judge to give sufficient reasons and to explain the findings that she reached so that the parties know why either one of them has succeeded or lost the appeal. The judge has not made findings or adequately explained her reasons, so that neither the respondent nor this Tribunal can be satisfied that the Judge had the correct requirements in mind. In those circumstances, in my judgment there is a material error of law and the decision of the First-tier Tribunal is set aside.
12. The decision needs to be re-made and I have decided that it is appropriate to remit this appeal back to the First-tier Tribunal, having considered paragraph 7.2 of the Senior President's Practice Statement of 25th September 2012. In my view the requirements of paragraph 7.2(b) apply, in that the nature and extent of any judicial fact-finding necessary, make it appropriate to remit the matter. The parties will be advised of the date of the First-tier Tribunal hearing in due course.
Notice of Decision
13. The decision of the First-tier Tribunal involved the making of an error of law such that it is set aside. The appeal is remitted to the First-tier Tribunal for hearing afresh.
14. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
I set aside the fee award made by the First-tier Tribunal. I have remitted the appeal back to the First-tier Tribunal. No fee award is made by the Upper Tribunal. This is to be considered by the First-tier Tribunal.

Signed

Deputy Upper Tribunal Judge Mandalia