Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10534/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision Promulgated
On 6 December 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

SARFARAJ THAVA
ANONYMITY DIRECTION NOT MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bloom (Counsel)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal ('FTT') dated 5 June 2016, in which it dismissed his appeal against the decision of an entry clearance officer ('ECO') dated 13 October 2015 to refuse entry clearance as a spouse.
2. The ECO refused the application because he was not satisfied that there was satisfactory evidence of a subsisting and on-going relationship between the parties.
FTT decision
3. The FTT decided the matter on the papers and without an oral hearing. In support of the appeal the appellant submitted relatively extensive evidence of social media contact between him and his spouse in the period just before the ECO's decision and just after.
4. The FTT considered itself unable to take account of additional evidence not before the ECO at the date of decision. The FTT then concluded that it was in agreement with the ECO that the evidence provided at the date of the application did not demonstrate a genuine and subsisting relationship, and dismissed the appeal under the Immigration Rules and on human rights grounds.
Legal framework
5. At the beginning of the hearing both representatives agreed that as the instant decision was made after 6 April 2015, the new appeal provisions in the Immigration Act 2014 ('the 2014 Act') apply.
6. Section 15 of the 2014 Act amended Part 5 of the Nationality, Immigration and Asylum Act 2002. This provides that where an appellant's human rights claim has been refused, an appeal must be brought on the ground that the decision breaches his human rights. The FTT has failed to direct itself in accordance with these provisions.
7. In any event both representatives agreed that the FTT has erred in law in its approach to the evidence. The old section 85(5)(b) clearly states that the FTT "may consider only the circumstances appertaining at the time of the decision to refuse." In DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038 the Tribunal drew a distinction between post decision evidence that "shed light" on the circumstances appertaining at the date of decision, which remained admissible, and post decision evidence relating to post decision events, which was not. The evidence in this case of social media contact clearly fell within the former category and the FTT has materially erred in law in failing to consider it in the context of an appeal on Art 8 grounds.
Re-making the decision
8. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:
"the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal."
9. Both representatives agreed that the FTT failed to consider all the relevant evidence of social media contact, and the assessment of the credibility of the claimed relationship needs to be completely redone. In all the circumstances I am satisfied that it would be proportionate to remit the case to the FTT. This is a case in which the FTT failed to consider the appropriate legal framework governing the grounds and evidence before it, and this needs to be redone. In any event consideration needs to be given to the proper approach to the relevant evidence appertaining to circumstances as at the date of decision in accordance with the applicable legal framework.
Decision
10. The decision of the FTT involved the making of a material error of law and I set it aside.
11. The decision shall be remade by the FTT.
Directions
(1) The matter shall be listed on the first available date before the FTT with a time estimate of 2 hrs.
(2) The appellant's solicitors shall file and serve a skeleton argument outlining the applicable legal framework and the evidence relied upon with page references to the appellant's bundle, 28 days before the hearing.
(3) The respondent shall file and serve a skeleton argument or a document summarising her position in response, 14 days before the hearing.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
6 December 2016