Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00024/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 8th November 2016
On 5th December 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

naq
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr Harrison, Senior Presenting Officer
For the Respondent: Mrs Preston, Immigration Legal Advice Centre

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As the decision contains information in relation to minors, it is appropriate to continue that direction.

DECISION AND REASONS

1. This is an appeal against the decision promulgated on 22nd March 2016 of the First-tier Tribunal (Judge Turnock) which allowed the Respondent's appeal against deportation.
2. The FtT in allowing his appeal found that the Respondent a citizen of Pakistan, had made out his claim, that it would be unduly harsh for his British born children to either follow him to Pakistan or remain in the United Kingdom without him.
3. For the purposes of this appeal I shall hereinafter refer to the Secretary of State for the Home Department as "the Respondent" and to NAQ as "the Appellant" reflecting their positions before the First-tier Tribunal.
Background
4. The Appellant is a citizen of Pakistan born 25th December 1975. He entered the United Kingdom on 22nd April 2005 on a settlement visa as a spouse, valid until April 2007. Thereafter he applied for indefinite leave to remain which was granted.
5. On 13th December 2007 the Appellant received a caution from West Yorkshire police for possessing goods with a false trademark for sale or hire.
6. On 26th January 2010 he was convicted at Leeds Crown Court on three counts of attempt/handling stolen goods for which he received a suspended sentence of imprisonment for 26 weeks, wholly suspended on each count for a period of twelve months.
7. On 2nd September 2014 the Appellant was convicted at Leeds Crown Court of burglary and theft of a dwelling and handling stolen goods. He was sentenced to sixteen months on the first count and six months' imprisonment on the second, to run concurrently.
8. As a consequence of his criminal convictions the Appellant was served by the Respondent with a liability for deportation letter dated 10th October 2014. In response to that letter the Appellant made representations dated 17th November 2014. However a deportation order was signed on 4th March 2015 and the Appellant was removed from the UK in October 2015 following certification by the Secretary of State under Section 94B of the Nationality, Immigration and Asylum Act 2002.
9. The Appellant's appeal against that decision was allowed by the First-tier Tribunal and the current appeal follows that decision.
Onward Appeal / Error of Law Hearing
10. The Respondent challenged the FtT's decision on three grounds, which can be distilled into the following headings:
(1) Failing to give reasons or adequate reasons for findings on material matters.
(2) Failing to take into account and/or resolve conflicts of fact or opinion on material matters.
(3) Making perverse or irrational findings on matters material to the outcome.
11. I am satisfied for the purposes of this decision that I can deal with all grounds together since I find that the challenges raised essentially amount to one challenge only, namely inadequacy of reasoning for conclusions reached.
12. Mrs Preston who appeared for the Appellant, sought to persuade me that the decision of the FtT is an adequately reasoned one and that the grounds seeking permission amount to no more than a series of disagreements with the judge's findings. She submitted that it is for the judge to decide what weight he places upon the evidence and it is up to the judge to decide what amounts to "unduly harsh" in the fact-sensitive circumstances of this case.
13. I find I disagree with Mrs Preston's submissions. Having reserved my decision at the error of law hearing, I now give my reasons. Although the FtT's decision is a comparatively lengthy one, paragraphs [41] to [69] do no more than simply set out the evidence presented together with the relevant case law. I see no proper analysis of the evidence showing how the conclusions set out in [70] have been reached. The step by step fact finding process is missing.
14. Furthermore at [72] the judge says the following;
"I do conclude that it would be unduly harsh for the children to live in Pakistan or to remain in the UK without the Appellant. I find that the children have no direct link with Pakistan."
However that fails to recognise that the children's father is a national of Pakistan where he now lives, their grandmother lives there, and the eldest child has visited Pakistan.
15. Added to this, the judge relied upon 2.3.4 of Chapter 13 of the Respondent's IDIs without referencing and referring to Section 3.5 (a) (b) and (c) of that document. Those latter sections are the ones which engage with the questions relevant to the test of whether the deportation of the foreign national is unduly harsh. The judge has not shown when taking note of the IDI's that he has had regard to the public interest element when weighing matters in the balance.
16. In these circumstances I am satisfied that the FtT's decision is not a fully reasoned one and has not taken into account material considerations. I therefore allow the Respondent's appeal and I set aside the FtT's decision. There will need to be a fresh hearing of this matter with full findings of fact being made.
Remaking the Decision
17. It was the view of both representatives that, in the event of my finding an error of law in the FtT's decision, it would be appropriate to remit the matter to that Tribunal to re-make the decision. This is on the basis that the FtT is the primary fact finding tribunal. I agree with the representatives.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law and is set aside. The decision will be remade by the First-tier Tribunal (not Judge Turnock).

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 his 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 C E Roberts Date 02 December 2016

Deputy Upper Tribunal Judge Roberts