The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/07266/2019


Decided under Rule 34 Without a Hearing
At Field House
Decision & Reasons Promulgated
On 28 October 2020
On 23 October 2020






1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Grimmett promulgated on 31 December 2019, dismissing his appeal under the Nationality, Immigration and Asylum Act 2002 against a decision of the respondent made on 29 March 2019 to refuse him entry clearance as the spouse of a person present and settle here and his human rights claim.
2. The appellant sought entry to the United Kingdom the spouse of a British Citizen. He had previously been resident here, claiming asylum as a minor on the basis that he was from Kosovo. He is, however, a citizen of Albania. He was removed from the United Kingdom on 20 December 2012, but re-entered unlawfully and was encountered some 4 years later in 2018. He left voluntarily.
3. The respondent refused his application for entry clearance under paragraphs 320 (3) and 320 (11) of the Immigration Rules.
4. On appeal, the judge found that the decision was proportionate and (apparently)that there was no reason why the appellant's partner could not live with him in Albania.
5. The appellant sought permission to appeal on the grounds that the judge had erred misdirecting herself in law as to paragraph 320 (11) and in failing to asked whether it would be reasonable for the appellant's wife to live with him in Albania.
6. On 4 April 2020, First-tier Tribunal Judge L Murray granted permission on all grounds.
7. On 30 July 2020, Upper Tribunal Judge Norton- gave directions which provided amongst other matters:
1. I have reviewed the file in this case. In the light of the present need to take precautions against the spread of Covid-19, and the overriding objective expressed in the Procedure Rules1, I have reached the provisional view, that it would in this case be appropriate to determine the following questions without a hearing:
(a) whether the making of the First-tier Tribunal's decision involved the making of an error of law, and, if so
(b) whether that decision should be set aside.
2. I therefore make the following DIRECTIONS:
(i) The appellant may submit further submissions in support of the assertion of an error of law, and on the question whether the First-tier Tribunal's decision should be set aside if error of law is found, to be filed and served on all other parties no later than 14 days after this notice is sent out (the date of sending is on the covering letter or covering email);
(ii) Any other party may file and serve submissions in response, no later than 21 days after this notice is sent out;
(iii) If submissions are made in accordance with paragraph (ii) above the party who sought permission to appeal may file and serve a reply no later than 28 days after this notice is sent out.
(iv) All submissions that rely on any document not previously provided to all other parties in electronic form must be accompanied by electronic copies of any such document.
3. Any party who considers that despite the foregoing directions a hearing is necessary to consider the questions set out in paragraph 1 (or either of them) above must submit reasons for that view no later than 21 days after this notice is sent out and they will be taken into account by the Tribunal. The directions in paragraph 2 above must be complied with in every case.
8. Both parties made submissions in response to directions, the respondent on 9 September 2020 stating that she does not oppose the application for permission.
9. The Tribunal has the power to make the decision without a hearing under Rule 34 of the Procedure Rules. Rule 34(2) requires me to have regard to the views of the parties. Bearing in mind the overriding objective in Rule 2 to enable the Tribunal to deal with cases fairly and justly, and bearing in mind the concession by the respondent, I am satisfied that in the particular circumstances of this case that it would be correct to make a decision being made in the absence of a hearing.
10. I am satisfied that the judge did err in reaching his decision as is claimed in the grounds of appeal and as is accepted by the respondent. The judge manifestly failed to explain why paragraph 320 (11) was engaged, nor does the identify what were the aggravating factors necessary for it to apply; still less did she engage with whether its application would have a proportionate result or take into account the appellant's voluntary return to Albania. Further, the judge failed to ask whether it would be reasonable to expect the appellant's wife to go to live in Albania.
11. For these reasons, the decision clearly involved the making of an error of law as claimed as these errors went to the core of the case.
12. I am persuaded that, as the evidence will in effect need to be heard again, as the core issues needs to be determined again that it would in all the circumstances be appropriate to remit the appeal to the First-tier Tribunal for a fresh hearing on all issues. For the avoidance of doubt, none of the findings of the First-tier Tribunal are preserved.

Notice of Decision & Directions
1. The decision of the First-tier Tribunal did involve the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal for a fresh hearing on all issues to be heard by a judge other than Judge Grommett. None of the findings made previously are preserved.

Signed Date 23 October 2020

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul