Tribunal decisions

The decision

IAC-fH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01320/2015
HU/01321/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 22 March 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Secretary of State for the Home Department
Appellant
and

FOO
EOO
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Mr J Reynolds of Counsel instructed by Brightway Immigration & Asylum

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant or his child sibling. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. I will refer to the adult respondent as the appellant as she was before the First-tier Tribunal. Her son is a minor and I make a direction for anonymity.
2. The appellant is a citizen of Nigeria and her date of birth is 9 October 1976. She made an application for leave to remain which was refused by the Secretary of State on 16 June 2015. She appealed against that decision and her appeal was allowed by Judge of the First-tier Tribunal Metzer in a decision which was promulgated on 14 September 2016, following a hearing at Taylor House on 25 August 2016. The Judge allowed the appeal under the Immigration Rules with specific reference to Appendix FM. On 16 January 2017 permission was granted to the Secretary of State by Judge of the First-tier Tribunal Page.
3. The grounds challenge the decision of the Judge in respect of EX.1(a) of Appendix FM and the application of the reasonableness test in respect of the appellant’s eldest child. It is asserted that the reasoning is inadequate and the Judge did not properly consider reasonableness in the context of Appendix FM, paragraph 276ADE(1)(iv) and Section 117B(6) of the 2002 Act and that he did not properly apply the test in accordance with the decision in MA (Pakistan) & Ors [2016] EWCA Civ 705.
4. The appellant’s case before Judge Metzer is that she came to the UK in 1999 having entered the UK using false documentation. She has three children and they were all born here. Her eldest son, Emmanuel, was born on 16 September 2007, her youngest son, Abayomi, was born on 26 February 2009. Her youngest child, a daughter, Elizabert was born here on 28 November 2010. The appellant and the eldest child were appellants before the First-tier Tribunal.
5. I heard submissions from Mr Reynolds but having considered Judge Metzer’s decision I am satisfied that he materially erred. The issue before him was reasonableness and the findings made by the Judge which led to him allowing the appeal are unreasoned. It is clear from the decision that the Judge misdirected himself in respect of reasonableness because he did not consider the public interest and make an assessment on a wider construction in accordance with MA (Pakistan). It is unclear from the decision what the evidence was before the Judge in respect of the eldest child (or the children generally) which led him to conclude that the appeal should be allowed under Appendix FM.
6. Having found a material error, I set aside the decision to allow the appeal. Both representatives agreed that in light of the error there are no findings that can be salvaged from the decision. There will need to be a complete re-hearing and in the light of the extensive fact finding that will need to take place the First-tier Tribunal is the appropriate venue.
7. I therefore remit the matter to the First-tier Tribunal for a re-hearing.

Notice of Decision
The Secretary of State’s appeal is allowed.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant or his child sibling. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Signed Joanna McWilliam Date 27 February 2017

Upper Tribunal Judge McWilliam