Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07900/2015
IA/20255/2015
IA/20270/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

A M and Others
(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 child welfare issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:
For the Appellant: Dr B. Chimpango of Crown & Law Solicitors
For the Respondent: Ms A. Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant (a minor) and her parents appealed against the respondent's decision dated 29 September 2015 to refuse a human rights claim.

2. First-tier Tribunal Judge Broe ("the judge") dismissed the appeal in a decision promulgated on 6 January 2016.

3. In a decision dated 13 September 2016 the Upper Tribunal granted permission to appeal in the following terms:
"It is at least arguable that the judge may not have approached the Article 8 assessment with reference to the relevant legal framework. It is perhaps unsurprising that the judge did not make findings in relation to paragraph 276ADE of the immigration rules when the appellants' representative apparently conceded that they did not meet those requirements [17]. It is arguable that some analysis of whether this concession was correctly made might have been required. Given the similarity of the 'reasonableness' test outlined in paragraph 276ADE(1)(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") the judge's failure to consider the appeal under the rules may not have been material save for the fact that there is no evidence to suggest that he gave any meaningful consideration to section 117B(6) as part of his overall assessment of Article 8 outside the rules."
4. At the hearing Ms Fujiwala accepted that the grant of permission identified an error of law in the First-tier Tribunal decision. Both parties agreed that it would be appropriate to remit the case for a fresh hearing before the First-tier Tribunal.

5. Although the judge gave some consideration to the best interests of the child and made findings regarding the proportionality of return under Article 8 it is apparent, for the reasons given in the grant of permission, that he did not conduct a sufficiently well-rounded assessment of the relevant circumstances and did not engage adequately with the legal test of whether it would be "reasonable" for the child to leave the UK: see MA (Pakistan) v SSHD [2016] EWCA Civ 705.

6. I conclude that the First-tier Tribunal involved the making of an error on a point of law that was material to the outcome of the appeal.

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 case to the First-tier Tribunal for a fresh hearing

Signed Date 17 October 2016
Upper Tribunal Judge Canavan