Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000690
HU/07597/2020

THE IMMIGRATION ACTS

Determined on the papers
Decision and Reasons Promulgated
On the 13th April 2022
On the 14th June 2022

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR NIR BAHADUR LIMBU
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge J G Raymond promulgated on 15 June 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 25 February 2020 refusing his application to join his widowed mother in the UK as her adult dependent child. The Appellant’s father was a former Gurkha. The Appellant’s claim is on Article 8 ECHR grounds.

2. The Respondent did not accept that the Appellant was dependent on his mother as claimed. He is an adult aged thirty-five years. The Judge indicated at [15] of the Decision that Article 8(1) was engaged. He did not provide any reasons for that finding. He went on to consider the proportionality of the Respondent’s decision refusing entry and concluded at [28] of the Decision that Article 8 “is not engaged on the basis that the personal circumstances of the appellant …are such as to make the refusal of entry clearance …disproportionate.”

3. The Appellant challenges the Decision on the basis that the Judge’s findings in relation to Article 8(1) were irreconcilable and inconsistent, having regard to paragraphs [15] and [28] of the Decision. It is submitted that the Judge, at [27] and [28] of the Decision, “erroneously conflate[s] the separation questions of ‘support which is real or effective or committed’ and ‘proportionality’ under Article 8(1) and Article 8(2) respectively”. By his second ground, the Appellant challenges the Judge’s proportionality assessment as ignoring “the applicable historical injustice principles” and having regard to the factors in section 117B Nationality, Immigration and Asylum Act 2002.

4. Permission to appeal was granted by First-tier Tribunal Judge Neville on 26 August 2021 in the following terms:

“The grounds in support of the (in time) application are arguable in their assertion that at [15] and [18] the Judge makes contradictory findings on Article 8(1) engagement. The finding made at [28] arguably conflates engagement and proportionality and, if Article 8(1) was indeed found to be engaged, arguably fails to explain why the appellant’s continued exclusion is proportionate in light of the historic injustice. Any such errors would (if established) be material.”

5. On 24 September 2021, the Respondent filed a rule 24 reply, conceding that the Judge’s finding at [15] in relation to engagement of Article 8(1) “is devoid of reasoning …or conflicts with the FTTJ’s finding” at [28]. She does not therefore oppose the Appellant’s challenge to the Decision and invites the Tribunal to set the Decision aside and remit the appeal to the First-tier Tribunal for a de novo hearing.

6. By a letter dated 6 April 2022, the Appellant’s solicitors have indicated that they are content with the Respondent’s suggestion and invite the Tribunal to find an error of law as conceded and to remit the appeal.

7. In light of the concession which I accept is properly made, I find an error of law for the reasons set out in the Rule 24 Reply. I therefore set aside the Decision.

8. The appeal is remitted to the First-tier Tribunal for redetermination of the appeal by a Judge other than Judge Raymond.

DECISION
I am satisfied that the Decision involves the making of a material error on a point of law. The Decision of First-tier Tribunal Judge J G Raymond promulgated on 15 June 2021 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a Judge other than Judge Raymond.

Signed L K Smith Dated: 13 April 2022
Upper Tribunal Judge Smith