Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01608/2015
IA/00985/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 2 November 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

A S & A O
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves issues relating to the welfare of children. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:
For the Appellant: Mr C. Jacobs, Counsel instructed by Fadiga & Co.
For the Respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The first and second appellants are husband and wife. The respondent made a deportation order under section 32(5) of the UK Borders Act 2007 against the first appellant following his conviction for possession of a passport with improper intention. The appellant was stopped while attempting to leave the UK with a passport that did not belong to him. The respondent made associated decisions under section 3(5)(b) of the Immigration Act 1971 to deport the first appellant's wife and two children. The appellants appealed against the respondent's decision to refuse a human rights claim within the context of deportation proceedings.

2. First-tier Tribunal Judge Scott-Baker ("the judge") dismissed the appeal in a decision promulgated on 01 December 2015. The appellants seek to appeal the decision on the following grounds:

(i) The First-tier Tribunal erred in finding that the appellant's son, who was in possession of a British passport at the date of the hearing, was not a British citizen.

(ii) The First-tier Tribunal made contradictory findings regarding the first appellant's knowledge of the fraud that led to an earlier revocation of Indefinite Leave to Remain, which rendered her findings relating to Article 8 flawed.

Decision and reasons

3. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

4. On behalf of the respondent, Ms Ahmad accepted that the judge did not have jurisdiction to find that the appellant's son was not a British citizen in circumstances where he was in possession of a British passport at the date of the hearing although she argued that it was open to the judge to make findings calling into question whether he was entitled to a British passport. She submitted that the error was not material but it is difficult to see how it could not have been material to a proper assessment of human rights issues when the consequence of holding a British passport would negate the respondent's power to deport the child. She was unable to tell me what the respondent's position had been before the First-tier Tribunal.

5. At the date of the hearing before the Upper Tribunal further evidence indicated that HM Passport Office revoked the child's British passport on 08 January 2016. I have considered whether it would be appropriate for the Upper Tribunal to remake the decision based on the current position, whereby the child no longer has evidence of British citizenship, and it is therefore arguable that the First-tier Tribunal Judge's findings of fact could still stand. However, some of the appellant's criticisms regarding apparently contradictory findings relating to the appellant's state of knowledge of the ILR fraud have some force. At the very least it is somewhat unclear whether the judge found that the appellant had knowledge of the fraud or not. Although the issue is not likely to be determinative it is a matter that is relevant to the weight to be given to public interest considerations. I am also told that there have been further developments in the appellants' factual circumstances. The appellants now have a third child and want to raise compassionate circumstances surrounding one of the other children. Bearing in mind the anxious scrutiny that must be given to human rights claims I am satisfied that it is appropriate to remit the case to the First-tier Tribunal for a fresh hearing.

6. The First-tier Tribunal decision involved the making of an error on a point of law. The decision is set aside and remitted to the First-tier Tribunal for a fresh hearing.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I set aside the decision and remit the appeal to the First-tier Tribunal for a fresh hearing

Upper Tribunal Judge Canavan
02 November 2016