Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10134/2015

THE IMMIGRATION ACTS

Heard at Birmingham Sheldon Court
Decision & Reasons Promulgated
On 4 October 2016
On 24 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

reda salman fadeel al bodour
(no anonymity order)
Respondent

Representation:

For the Appellant: Ms H Aboni, Senior Home Office Presenting Officer
For the Respondent: Dr Reda Salman Fadeel Al Bodour, in person

DECISION AND REASONS

1. The Secretary of State appeals with permission to the Upper Tribunal against the decision and reasons statement of FtT Judge Barrowclough that was promulgated on 30 December 2015.
2. After discussing the issues with Ms Aboni and Dr Al Badour, I decided that there was legal error in Judge Barrowclough's decision in that he failed to give adequate reasons for finding that the Home Office had acted with "bureaucratic ineptitude" in rejecting and refusing the earlier applications made by Dr Al Badour.
3. I begin by explaining that although the Home Office reasons for refusal letter dated 19 October 2015 refers to Dr Al Badour's previous applications when describing his immigration history, neither party has provided copies of the earlier correspondence. Therefore, Judge Barrowclough could not assess for himself the reasons why the Home Office rejected and refused those applications, which according to the Home Office broke the continuity of Dr Al Badour's residence in the UK.
4. Compounding this problem is the fact the appeal was dealt with "without a hearing". Judge Barrowclough had no evidence that all relevant papers had been served on the Home Office. It may be that Dr Al Badour sent the relevant papers to the Home Office well before the appeal was decided in the First-tier Tribunal but he did not provide evidence that such documents had been delivered to the Home Office in accordance with directions issued on 19 November 2015. As a result, Judge Barrowclough could not assume they had been served on the Home Office.
5. Ms Aboni advised me that the Home Office did not have the documents referred to in the decision and reasons statement. This raises concerns regarding fairness because I can only conclude that the Home Office was not been given an opportunity to respond to Dr Al Badour's allegations regarding the treatment of his previous applications because the Home Office was unaware of the allegations.
6. As a result of the above conclusions, I have decided to set aside Judge Barrowclough's decision and order that the appeal is reheard afresh in the First-tier Tribunal. Nothing is preserved from the earlier decision and reasons statement; the findings made cannot be maintained if the First-tier Tribunal concludes that the Home Office wrongly rejected the earlier applications because if that is the case then there will have been no break in the period of residence.
7. I give the following direction for the remitted hearing.
a. The appeal is to be heard and decided de novo.
b. The appeal is to be decided at a hearing and not on papers. As this is directed by me as being necessary in the interests of justice, there is no additional appeal fee.
c. The appeal is to be heard by me in the First-tier Tribunal.
d. It is to be listed on the first available date after four weeks.
e. The parties must provide and exchange any documents on which they seek to rely at least 14 calendar days before the remitted appeal is heard. This includes copies of all documents previously submitted to the Tribunal. Failure to comply may result in the First-tier Tribunal excluding late evidence.
Decision
The decision and reasons statement of Judge Barrowclough contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing.

Signed Date 24 October 2016

Judge McCarthy
Deputy Judge of the Upper Tribunal