Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17345/2017

THE IMMIGRATION ACTS

On the papers
Decision & Reasons Promulgated
On 3 June 2019
On 10 June 2019

Before

UPPER TRIBUNAL JUDGE HANSON

Between

KALIRAJA RAJMAYURAN
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
1. On 3 October 2018 First-Tier Tribunal Judge Easterman dismissed the appellant's appeal concluding there was no valid appeal. Permission to appeal was granted by the Upper Tribunal on 7 March 2019. The view of the Secretary of State was sought, within a specified time period, as to whether the respondent intended to withdraw the decision of 5 October 2017 and issue a fresh decision either refusing the human rights claim but giving a right of appeal or concluding that the further submissions did not amount to a fresh claim but providing a proper detailed explanation.
2. The respondents reply, dated 22 May 2019, contains the following relevant paragraphs:
2. In summary, the respondent's position is that Judge Easterman was wrong to hold that there had been no appealable decision in this case. Whilst the decision letter (which is attached to the email accompanying this letter) certainly was somewhat reticent in identifying the matter which had been accepted as such a claim, it stated in unambiguous terms that it constituted a refusal of a human rights claim and was thus an appealable decision under section 82(1)(b). It is not unknown for a would-be appellant to assert that a letter impliedly constitutes an appealable decision despite stating otherwise (see for example the reported decision in Sheidu (further submissions; appealable decision: Sudan) [2016] UKUT 412 (IAC) but here the reverse applies. The appellant's further submissions were put through the paragraph 353 process recently approved by the Supreme Court in Robinson and a fresh claim was accepted, although not well identified in the letter refusing it.
3. In those particular circumstances the principle that an appeal right derives from statute and cannot be conferred by the executive is not applicable - here we properly notified that there was a right of appeal but did not satisfactorily explain why.
4. In the circumstances the Respondent is minded to concede that Judge Easterman erred in law and to ask that the matter be remitted on the basis that there is a live appeal arguable on Article8 matters subject to ss82(1)(b) and 84 - 86 of the 2002 Act as amended.
3. In light of this response it serves little purpose for there to be an oral hearing to establish whether Judge Easterman erred in law. The Upper Tribunal exercising its powers to dispose of the matter on the papers finds that the First-Tier Tribunal has erred in law in concluding there was no valid appeal when the opposite is the case. The decision of that Tribunal is set aside. The appeal is remitted for a further hearing before the First-Tier Tribunal at Hatton Cross by a judge nominated by the Resident Judge of that hearing centre other than Judge Easterman.
Decision
4. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. The appeal shall be remitted to the First-tier Tribunal sitting at Hatton Cross to be determined by another judge of that Tribunal.
Anonymity.
5. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Sighed
Upper Tribunal Judge Hanson Dated the 3 June 2019