Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15714/2018

THE IMMIGRATION ACTS

Heard at Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On 19th July 2019
On 25th July 2019

Before

UPPER TRIBUNAL JUDGE COKER

Between

MEHWISH TAHIR
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by TRP Solicitors Ltd
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. First-tier Tribunal Judge Bart-Stewart dismissed the appellant's appeal against the decision of the respondent refusing her human rights claim. The decision was promulgated on 19th February 2019 following a hearing on 25th January 2019.
2. The appellant had made a human rights claim which had initially been refused and certified under s94(1) Nationality Immigration and Asylum Act 2002. That decision by the respondent was reconsidered/withdrawn by him and refused, thus enabling the appellant to appeal.
3. There are a number of difficulties with the First-tier Tribunal decision. The judge, at times, addresses the certified decision rather than the decision the subject of appeal; refers to the appellant's nationality as Indian whereas she is Pakistani; although she finds the appellant's husband was badly advised and it is that advice which led to him not succeeding in his application for leave to remain under the Rules, she finds his immigration history is not blameless.
4. The judge's attention was particularly drawn to Mansur (Immigration Advisor's failings, Article 8) [2018] UKUT 274 (IAC) with specific reference to the appellant's husband's circumstances. Submissions were made that given the acknowledged failings of the husband's immigration advisors, the impact on the public interest of maintaining immigration control was diminished. This, given the age of the eldest child, albeit under 7, and the length of residence of the husband and the appellant as his dependant, should have been addressed and findings made. The reference by the judge to the husband's circumstances not being an exceptional factor was, it was submitted in the grounds of appeal, an indication that the judge had applied the incorrect test in searching for a unique or unusual feature.
5. Mr Mills submitted that although the judge had at times in the decision appeared to be addressing the wrong decision, the overall conclusion was one which was inevitable and thus even if there were errors of law in the approach by the judge, they were not such as to result in the decision being set aside to be remade.
6. This was a difficult case to decide given the mix-up by the judge. As I emphasised to Mr Pipe, and he acknowledged, it will be difficult for the appellant to succeed in her appeal. Nevertheless, I do not take the view that the claim is unfounded and thus that her appeal would inevitably fail. The mix up by the judge combined with the failure to address Mansur in the accepted circumstances of the husband and the cursory consideration given to the circumstances as a whole render the decision, in my view, untenable. The lack of care by the judge together with the failure to address core submissions made, result in errors of law such that I set aside the decision to be remade.
7. It cannot be said with certainty that the First-tier Tribunal judge addressed the evidence as a whole and reached conclusions that can be retained. The hearing, or at least the decision has not reached consistent findings. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. In these circumstances I remit this case to the First-tier Tribunal to be heard afresh.
Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision and remit it to the First-tier Tribunal to be re-heard.

Date 20th July 2019

Upper Tribunal Judge Coker