Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11438/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Celestine sunday ikpade-iwediuno
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr S Staunton, Senior Home Office Presenting Officer
For the Respondent: Mr J Khalid, Counsel instructed by Chancery CS Solicitors
DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal ruling that the decision of the Secretary of State made on 20 April 2016 refusing the applicant leave to remain in the United Kingdom was unlawful and had to be decided again.
2. It is a feature of this case that a similar decision was made by First-tier Tribunal Judge Phull in November last year when she decided that a decision was not in accordance with the law because the Secretary of State did not give proper regard for the interests of a child or children. I am not seized with any possible appeal against Judge Phull's decision but I do make the point that the powers of the Tribunal have been changed recently and it may be that a different statutory regime operated when Judge Phull was considering the appeal. Nothing that I say here is to be seen as a criticism of her decision.
3. In the case before me the only permissible grounds of appeal are those set out under Section 84 of the Nationality, Immigration and Asylum Act 2002 in their present form effective from October 2014, subject to transitional provisions, and it is a feature of the "new" grounds of appeal, if I can so describe them, that that the Tribunal can no longer treat as a ground of appeal the contention that the decision was not in accordance with the law. Notwithstanding this change, the First-tier Tribunal Judge in this case effectively decided that the decision was not in accordance with the law.
4. In my judgment the decision is wrong and has to be set aside for that reason because it was a decision determining a ground that the Tribunal had no power to consider. But even if I am wrong about that the judge was wrong because, although it is feature of this case that little consideration has been given to the interests of the child there is no reason to think the Secretary of State had the appropriate information before her. The Tribunal can decide the best interests of the child.
5. The Tribunal has been reminded of the decision in JO and Others (Section 55 duty) Nigeria [2014] UKUT 00517 (IAC) where the President of this Tribunal emphasised, not for the first time, that the obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009 mean what they say and that the Secretary of State must make a properly reasoned decision concerning the welfare of the child where there is evidence to support such a decision. However the decision in JO also made it clear that ordinarily the Secretary of State's duties are limited to making a decision on the information that has been given. Although there might conceivably be occasions where, in order to guard the welfare of a child, the Secretary of State is under a duty to make further enquiries that is certainly not a general or freestanding obligation. Rather it is a necessary "backstop" to prevent a decision that is harmful to a child.
6. In this case the First-tier Tribunal Judge should have made a decision doing the best he could on the evidence that he had got. Ironically it is perhaps as well that he did not take that course because it is not clear that a bundle of evidence about the circumstances of the child had actually found its way onto the papers. Evidence had been prepared and was not considered by the Judge but I am not able to say that it was ever before him.
7. It is quite clear to me that the decision needs to be set aside and the case needs to be decided again, I find in the First-tier Tribunal. The actual merits of the appeal have only been looked at once by the First-tier Tribunal. It was facts relating to the same applicant but a different decision that was dealt with on the previous occasion. It is absolutely clear to me that the proper Tribunal for dealing with this at least at the first instance is the First-tier Tribunal where proper consideration can be given to the evidence that the parties seek to produce.
8. On the last occasion it was dealt with on the papers. That is not appropriate for a case such as this and I direct that there be an oral hearing because this case is not suitable for consideration on the papers.
9. I further direct that the case be heard again in the First-tier Tribunal; that the original Appellant, the present Respondent, do prepare and serve a fresh paginated bundle containing all the documents on which he intends to rely including witness statements to stand as evidence-in-chief without the need for further questions no later than ten days before the date fixed for hearing; no interpreter is required. Time estimate of two hours. If the original Appellant neglects to comply with these directions then it is likely that the Tribunal will make a decision on the evidence that is before it which may not be what the Appellant wants to achieve.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 13 January 2017