Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00751/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2018
On 23 February 2018

Before
UPPER TRIBUNAL JUDGE FINCH

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
-and-

WISDOM [D]
(NO anonymity direction MADE)
Respondent

Representation:
For the Appellant: Ms Z. Ahmad, Home Office Presenting Officer
For the Respondent: Ms. D. Fosuhene of Chancery CS Solicitors

DECISION AND REASONS

1. The Appellant, who was born on [ ] 1992, is a national of Nigeria. He entered the United Kingdom, as a visitor, on 17 October 2004 and has had no leave to remain since that visa expired six months later. Since 25 May 2007 he has committed a number of offences. He also suffered mental abuse from his father and his girlfriend, which is thought to have led to increasing spells of mental illness.

2. On 9 September 2015 he applied for leave to remain on human rights grounds but his application was refused on 22 December 2015. He appealed against this decision on 31 December 2015 and his appeal was heard by First-tier Tribunal Judge Dean on 24 October 2017. She allowed his appeal on human rights grounds in a decision promulgated on 3 November 2017.

3. The Secretary of State appealed against this decision on 15 November 2017 and First-tier Tribunal Judge Chohan granted her permission to appeal on 19 December 2017.

Error of Law Hearing

4. Both the Home Office Presenting Officer and the legal representative for the Respondent made short oral submissions and I have referred to these, where relevant in my findings below.

Error of Law Decision

5. Those acting for the Respondent had submitted a large bundle of documents which included relevant case law, psychiatric reports, country reports, witness statements and written submissions on behalf of the Respondent and in his report Dr. Ogbeide had found him to be not fit to give evidence or understand the tribunal proceedings. As a consequence, he was not in court during the hearing.

6. In his report, dated 15 October 2017, Dr. Ogbeide, a General Adult Specialist Registrar Psychiatrist, had also concluded that the Respondent suffered from a schizoaffective disorder, which was chronic, enduing, relapsing and remitting. At the time of the appeal hearing he was being treated at the Allington Centre subject to sections 48/49 of the Mental Health Act.

7. The very detailed written submissions went through all the circumstances of the Respondent's offending behaviour and his psychological history. They also submitted that removing the Respondent to Nigeria would amount to a breach of Article 3 of the ECHR in the light of the decision in Paposhvili v Belgium (Application No. 41738/2010 in the Grand Chamber. In the alternative, it was submitted that his removal would amount to a breach of Article 8 in the context of MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279.

8. The record of proceedings indicates that there was some discussion at the hearing as to whether the decision reached by the Appellant was unlawful in the light of the more recent psychiatric evidence and whether the appeal could be allowed to this limited extent. However, the parties and the First-tier Tribunal concluded that this was no longer an option. This was correct in the light of the repeal of section 87 of the Nationality, Immigration and Asylum Act 2002 and Greenwood (no.2) (para 398 considered) [2015] UKUT 629 (IAC). In that case it was confirmed that a First-tier Tribunal Judge must now "determine" a case and no longer has the power to remit a case to the Secretary of State for any purpose.

9. The legal representative for the Respondent submitted that the HOPO was given time to consider the new medical evidence and the Respondent's Bundle by the Judge before the hearing commenced and that she had then conceded the appeal. There is no mention in the record of proceedings or the decision of a formal concession.

10. In any event, the First-tier Tribunal Judge was under an obligation to determine the appeal before her. The legal representative for the Respondent relied on the detailed written submissions which had been submitted and the other documents in the Respondent's Bundle. However, the First-tier Tribunal's findings were very limited. In paragraph 13 he noted that "the medical and psychiatric evidence from 2016 and 2017 shows that the Appellant's mental health is a material factor in his appeal". Then, at paragraph 14 of the decision, he found that the Respondent's decision was not one which can be considered proportionate". He did not provide any reasons for these findings and did not refer to the evidence with any particularity.

11. It was not possible to just infer that the First-tier Tribunal Judge had accepted and adopted the contents of the written submissions provided by those representing the Respondent. In any event, the written submissions addressed both Articles 3 and 8 of the ECHR and any finding on proportionality would only have been relevant to a breach of Article 8.

12. As a consequence, I find that First-tier Tribunal Judge Dean failed to give adequate reasons for her findings. In particular, she failed to explain her assessment of more important pieces of the evidence and did not give the Appellant sufficient reasoning to clarify why and on what basis the appeal had been allowed.

13. For these reasons I am satisfied that First-tier Tribunal Judge Dean did make material errors of law in her decision and reasons.

DECISION

(1) The Appellant's appeal is allowed.

(2) The decision by First-tier Tribunal Judge Dean is set aside.

(3) The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge Dean.

Nadine Finch

Signed Date 16 February 2018

Upper Tribunal Judge Finch