HU/04362/2015

• Status of case: Unreported
• Hearing date: 27 Feb 2017
• Promulgation date: 8 Mar 2017
• Publication date: 1 Feb 2022
• Last updated on: 1 Feb 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04362/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision Promulgated
On 27 February 2017
On 8 March 2017



Before

UPPER TRIBUNAL JUDGE CANAVAN


Between

OLENA ZUBATA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the appellant: Ms F. Shaw, Counsel instructed by IMK Solicitors
For the respondent: Mr P. Singh, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant appealed the respondent’s decision to refuse a human rights claim. First-tier Tribunal Judge Grimmett (“the judge”) dismissed the appeal in a decision promulgated on 14 July 2016.
2. The appellant seeks to challenge the First-tier Tribunal decision on the following grounds:
(i) The judge erroneously relied on the fact that the appellant had been able to complete higher education as a reason for concluding that she could live independently without putting it to the appellant to answer at the hearing. In fact, she conducted most of her degree course by correspondence from home. The judge also erroneously misunderstood other aspects of the evidence.
(ii) The judge erroneously rejected the appellant’s claim to suffer from depression on the ground that she was not receiving treatment, but in so doing, failed to take into account material evidence from the appellant’s doctor, which showed that she is prescribed anti-depressant medication.
(iii) It was irrational for the judge to conclude that there were no elements of dependency beyond normal emotional ties between the appellant and her mother in light of the evidence that supported the claim that the appellant’s mother acts as her carer.
(iv) The judge failed to conducted a proper assessment of the appellant’s Article 8 rights outside the immigration rules.
3. Rule 40 of The Tribunal Procedure (Upper Tribunal) Rules 2008 allows the Upper Tribunal to give a decision orally at a hearing. Rule 40(3) states that the Upper Tribunal must provide written reasons with a decision notice to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings. Rule 40(3) provides exceptions to the rule if the parties have consented to the Upper Tribunal not giving written reasons.
4. Both parties were in agreement that the decision disclosed material errors of law that were sufficient to set aside the decision. In particular, Mr Singh accepted that the judge failed to conduct a full assessment of Article 8 outside the immigration rules. In view of the fact that both parties consented to the decision, and consented to the Upper Tribunal not giving full written reasons, this notice does not need to set out anything more than the outcome of the decision given at the hearing.
5. I am satisfied that the First-tier Tribunal decision involved the making of an error of law. The decision is set aside. Both parties were in agreement that the appropriate course of action was to remit the appeal to the First-tier Tribunal because it was said that further medical evidence is likely to be made available as well as updated evidence relating to the situation in Ukraine.

DECISION
The First-tier Tribunal decision involved the making of an error of law
The decision is set aside
The appeal is remitted to the First-tier Tribunal for a fresh hearing


Signed Date 27 February 2017
Upper Tribunal Judge Canavan