Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03119/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

John Kingsford Enyiam
(anonymity ORDER not made)
Respondent

Representation:
For the Appellant: Mr P Singh, Home Office Presenting Officer
For the Respondent: Mr S Tampuri, Legal Representative, Chancery CS Solicitors

DECISION AND REASONS
1. This appeal will require to be reheard and in the circumstances I do not propose to devote much time to rehearsing the history of Mr Enyiam and his family - which is in any event summarised in the decision of the First-tier Tribunal.

2. Mr Enyiam - who for the sake of consistency with the proceedings before the First-tier Tribunal I shall refer to as the Appellant - has as dependants in his appeal his wife and three children. All three children were born in the United Kingdom; the oldest is presently 10 years old.

3. The appeal that came before the First-tier Tribunal in July of last year was an appeal based on human rights grounds against a decision to refuse leave to remain in the United Kingdom. The focus of the appeal before First-tier Tribunal Judge Aziz related to a consideration of the so-called 'parent route' under Appendix FM. It is apparent from paragraph 11 of the First-tier Tribunal decision that it was conceded on behalf of the Appellant by Mr Tampuri that he could not succeed under the 'partner route', but it was argued that there had been an error of law in relation to the 'parent route'.

4. I should pause to say that Mr Tampuri tells me that he had attended the hearing at Hatton Cross in July 2016 ready to proceed to a substantive hearing of the appeal and ready to present evidence and arguments in respect of Article 8, the family and private life established in the United Kingdom, and issues of proportionality, irrespective of any technical error that might or might not be identifiable in the 'reasons for refusal' letter ('RFRL').

5. Be that as it may, Judge Aziz determined that the Secretary of State had in fact fallen into error in his consideration of the circumstances of the Appellant in relation to being a parent of the eldest child by reference in particular to paragraph EX.1 of Appendix FM.

6. At paragraph 12 of the decision of the First-tier Tribunal the Judge identifies that in the RFRL when considering paragraph EX.1 the Secretary of State appeared to have regard to the test of 'insurmountable obstacles' rather than the 'reasonableness' test which is the appropriate test in respect of consideration of the circumstances of children.

7. Although it is appropriate to say that there does indeed appear to be an error in the consideration of EX.1, as the Secretary of State points out in the grounds of appeal to the Upper Tribunal, EX.1 was not a material consideration under the Immigration Rules because the Appellant did not satisfy the requirements of paragraphs E-LTRP.2.3 and 2.4 - which meant that EX.1 was not 'in play'. Moreover, as is well-understood, EX.1 has no freestanding effect. Accordingly, even if there had been an error in what was said in respect of EX.1 it could not have affected the outcome of the Secretary of State's decision under the 'parent route' because EX.1 was not reached under the parent route.

8. The Secretary of State also argues that in any event the 'reasonableness' test was given specific consideration in the context of paragraph 276ADE, and in this regard my attention is directed to paragraph 48 of the RFRL where it is made clear that the Secretary of State was of the view that it would not be unreasonable to expect the eldest child to leave the United Kingdom.

9. So, on the face of it, the First-tier Tribunal Judge fell into error in considering that there was any material error on the part of the Secretary of State, and also in failing to recognise that the Secretary of State had given substantive consideration to the concept of reasonableness - even if only under paragraph 276ADE rather than by express reference to the 'parent route'.

10. In the circumstances it is absolutely clear to me that the First-tier Tribunal Judge should have appropriately recognised that there was an appeal on the merits before him in respect of which the Secretary of State had expressed an opinion in the decision letter, and should have proceeded to consider the evidence and submissions and reached a determination. In effect that is what is now required to be done.

11. The situation remains that there has been no substantive consideration of any of the evidence by the Tribunal: the Appellant has been denied a substantive consideration of his appeal. In the circumstances it is appropriate that the remaking of the decision in the appeal take place before the First-tier Tribunal.

12. Before leaving this case I should just say a very few words about one other aspect of the grounds of challenge which is raised in reference to the powers of the Tribunal pursuant to amendments introduced by the Immigration Act 2014, and in particular in repealing section 87 of the Nationality, Immigration and Asylum Act 2002 and the comments and observations made in this regard in the case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC). In short the Secretary of State has identified a passage in support of the challenge herein, at paragraph 21 of the case of Greenwood, with regard to the absence of a power in the 2002 Act for the Tribunal to remit an appeal.

13. The quotation in the Secretary of State's grounds of appeal is incomplete in some regards: the full text of paragraph 21 when read with paragraph 23 holds that the Tribunal retains a power to conclude that a decision of the Secretary of State was not in accordance with the law and to leave the matter there, such that there is in effect a continuing outstanding application before the Secretary of State so that a lawful decision remains to be made, albeit that the Tribunal does not then have a power to direct remittal. It is, as observed by the Tribunal in Greenwood, effectively a declaratory decision.

14. In substance it seems to me that that gives rise to differences of procedure rather than practicalities. The findings in Greenwood preserve the power of a Tribunal to conclude that a decision of the Secretary of State was not in accordance with the law and thereafter not to proceed to remake the decision for itself but to leave the matter outstanding before the Secretary of State and thereby, without using the language of remittal, effectively bring about a situation where it is incumbent upon the Secretary of State to determine in accordance with the law the outstanding decision. I accept that there is no power to make any directions to the Respondent in consequence of the decision, or to give effect to the decision, but that is likely to be of little consequence where the effect of the Tribunal's decision is that an application remains outstanding before the Secretary of State. In all such circumstances, and having regard to an applying Greenwood, I can see no material error in the Judge's use of the language of 'remittal', and can see no real substance in the Secretary of State's grounds suggesting the Judge had unlawfully issued directions to the Respondent.

15. That said, it does seem to me that there may yet be an argument to be had as to whether the powers left to the Tribunal following the amendments made by the 2014 Act permit such an approach at all: i.e. whether the powers of the Tribunal permit the 'fourth outcome' referred to at paragraph 21 of Greenwood, or limit the Tribunal to allowing or dismissing an appeal on its substance.

16. Section 86(2) provides that "the Tribunal must determine any matter raised as a ground of appeal"; the permissible ground of appeal for a refusal of a human rights claim under section 84(2) is "that the decision is unlawful under section 6 of the Human Rights Act 1998"; section 6(1) of the Human Rights Act 1998 makes it "unlawful for a public authority to act in a way which is incompatible with a Convention right". Given such a legislative framework it seems to me that it is arguable that it is incumbent upon the Tribunal to determine substantively whether a decision does or does not breach a protected human right, and that the Tribunal's powers thus defined do not allow of any alternative 'halfway' position where no such decision is made by the Tribunal and the matter is left still outstanding before the Secretary of State. There is no permissible ground of appeal, and no correlative power to allow an appeal, on the ground that a decision was unlawful (or not in accordance with the law) per se: the permissible ground is that the decision was unlawful in respect of the specific identified provision of the Human Rights Act, which requires a decision on that specific issue. As such it appears to me that there is scope to question whether Greenwood is correctly decided on this point.

17. Be that as it may, it is not material to the matters before me. I have heard no arguments on the issue and I express no fixed view. For the reasons already given, however, the appeal in this case is now to be relisted and in due course heard before the First-tier Tribunal with all issues at large.

Notice of Decision
18. The First-tier Tribunal Judge erred in law. The decision of e First-tier Tribunal is set aside.

19. The decision in the appeal is to be remade before the First-tier Tribunal in front of any Judge other than Judge Aziz.

20. No anonymity order is sought or made.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 6 February 2017

Deputy Upper Tribunal Judge I A Lewis