Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02615/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 June 2016
On 6th October, 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GEETHAPRIYAN SELVANAYAGAM
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr A Syed-Ali, Counsel, instructed by Immigration Chambers
DECISION AND REASONS
1. I see no need for, and do not make, an order restricting publicity about this Decision.
2. This Decision perfects the extempore judgment I gave at the end of the hearing on 27 June 2016.
3. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Majid allowing the appeal of the present respondent, who I will call "the claimant", against the decision of the Secretary of State refusing him leave to remain in the United Kingdom. According to the First-tier Tribunal Judge's decision the Secretary of State refused him leave to remain as an asylum seeker and a student.
4. The Judge's decision concludes clearly enough with the words "appeal allowed" but I cannot discern why it was allowed. It may be that it was allowed with reference to Article 8 of the European Convention on Human Rights but that is not clear. If it was allowed on Article 8 grounds then the reasons are inadequate reasons. The very least the Judge should have done was to have regard for Section 117 (in its amended form) of the Nationality, Immigration and Asylum Act 2002 because that puts an obligation on a Judge dealing with an Article 8 claim to consider certain factors. It is very desirable that these are addressed expressly.
5. It is not necessarily fatal to fail to address them expressly if it is plain from the determination that they have indeed been considered but that is not plain on the face of this determination.
6. It is possible to discern certain points that impressed the judge. The claimant came to the United Kingdom as a young lad aged 13 years or thereabouts. He has lived there since 2009. It is not his fault that he was brought to a country other than his country of nationality and it seems, without making any findings, that he has behaved creditably, that he has done well and has opportunities open to him if he can remain in the United Kingdom. These things are generally not enough to support a decision to allow an appeal on human rights grounds.
7. As Mr Bramble said, correctly, that there is an asylum appeal here. If there had been proper findings of fact on the asylum appeal it would be possible to discern how it may (I emphasise the word "may") be the case that the claimant, if not a refugee, would find return to Sri Lanka so burdensome that the appeal should be allowed on human rights grounds. However, Mr Bramble was certainly not suggesting that that ought to be outcome. He merely made the point that even that possible route cannot be read into this Decision because the essential findings of fact about conditions in Sri Lanka have not been made.
8. Mr Syed-Ali presented a thoughtful Rule 24 response which I considered and I commend him for doing the best that he could with the hand that had been dealt to him but with respect to Mr Syed-Ali this really will not do. This is a Decision that is wholly deficient and I must set it aside.
9. I cannot go on to make the decision today. I cannot see on the papers before me any proper basis for allowing or dismissing the appeal without having heard considerable evidence. As the First-tier Tribunal, I have to say, has wholly failed to make proper findings it is only right that the claimant is given the opportunity of a new hearing in the First-tier Tribunal where all his appeal rights are preserved.
10. It is unfortunate that this young man's case was not treated in a way that showed more regard to the requirements of the Rules. It must be very puzzling and frustrating for him to be told he has won an appeal to then watch a different judge set aside the decision that assisted him. I find that I must do that because the Decision is, frankly, completely inadequate.
11. I set aside the Decision of the First-tier Tribunal. I rule that the appeal be determined again in the First-tier Tribunal. To that extent the Secretary of State's appeal is allowed.

Notice of Decision
Secretary of State's appeal is allowed. Appeal to be reheard in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 5 October 2016