Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/03162/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 10 November 2016

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

F A S
[No anonymity direction made]
Claimant

Representation:
For the claimant: Mr R Jesurum, instructed by Makka Solicitors Ltd
For the appellant: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appeal of the Secretary of State against the decision of First-tier Tribunal Judge Abebrese promulgated 1.3.16, allowing on human rights grounds the claimant's appeal against the decision of the Secretary of State, date 4.12.14, to refuse his application for leave to remain in the UK as the spouse of a British citizen and to remove him from the UK pursuant to section 47 of the Immigration Asylum and Nationality Act 2006. The Judge heard the appeal on 5.2.16.
2. First-tier Tribunal Judge Hollingworth granted permission to appeal on 5.9.16.
3. Thus the matter came before me on 24.10.16 as an appeal in the Upper Tribunal.
Error of Law
4. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Abebrese should be set aside.
5. The relevant background can be briefly summarised as follows. The claimant first entered the UK in 2012 as the spouse of [AB] with leave valid until 14.4.14. On the day of expiry of his leave, pursuant to paragraph 287, he applied for indefinite leave to remain (ILR) as the souse of Ms [B], who at that time supported the application. However, whilst a decision on the application was pending, in September 2014 the claimant and Ms [B] separated and she notified the Home Office that she no longer supported his application. He was called for interview on 28.11.14, where he stated that he was no longer living with his wife. The application was thus refused on 23.12.14, as the marriage was not subsisting and they did not intend to live together permanently. The application was also refused because he failed to meet the knowledge of life in the UK requirement of paragraph 287(a)(vi), having failed the test on a number of occasions. In the circumstances described, he could not meet the alternative requirements under Appendix FM in respect of family life and paragraph 276ADE in respect of private life.
6. By the time of the appeal hearing in the First-tier Tribunal, after a period of separation of some 10 months, the claimant and his wife had reconciled, and she was expecting a child in February 2016. She now supported his application and thus appeal.
7. At [14] the First-tier Tribunal concluded that the claimant could not satisfy the requirements of the Rules. But it appears that the judge only considered paragraph 287 and 276ADE. There is no reference to Appendix FM, which was considered by the Secretary of State. It may be that there is something missing from [14] of the decision, as the final sentence does not reach a conclusion.
8. However, at [16] of the decision, the judge concluded that the claimant and his wife were then in a genuine and subsisting relationship. At that point the judge identified the issue being as to whether there were any compelling or compassionate circumstances sufficient to justify allowing the appeal outside the Rules on private and/or family life pursuant to article 8 ECHR. The judge immediately concluded that there were were such compelling and compassionate circumstances and thus went on to conduct a Razgar stepped approach, concluding at [18] that the removal of the claimant would interfere with his private and family life and at [21] that removal would be disproportionate. The Tribunal thus allowed the appeal.
9. In granting permission to appeal, Judge Hollingworth found it to be arguable as to the sufficiency of the First-tier Tribunal's reasoning before concluding that compelling circumstances existed to justify consideration under article 8 ECHR outside the Rules; it being arguable that the Tribunal misdirected itself.
10. Whilst finding at [16] that there were compelling/compassionate circumstances in this case, no reasoning is provided for such a conclusion. At [17] the statement is made that "The appellant has however relied on Article 8 in this appeal and therefore the Tribunal finds that it is appropriate to consider the merits of this appeal." I do not understand why the judge considered that mere reliance on article 8 justified a consideration outside the Rules. It is clear that the judge has failed to apply SS (Congo) [2015] EWCA Civ 387, where at [33] the Court of Appeal held that the general position is that compelling circumstances would need to be identified to support a claim for LTR outside the Rules.
11. The existence of a genuine and subsisting relationship is insufficient to amount to compelling circumstances. The Rules make ample provision for LTR, under paragraphs 287, 276ADE, or Appendix FM of the Immigration Rules. There should have been consideration of Appendix FM before considering article 8, and there should have been clear and cogent reasoning before going on to consider article 8 outside the Rules. Appendix FM sets out the Secretary of State's proportionate response to article 8 family life claims.
12. Further, I find that the Razgar proportionality assessment was inadequately reasoned. There is no more than a list of factors, said to be in the claimant's favour and there is no evidence of any balancing exercise between on the one hand the rights of the claimant and his family members, and on the other the legitimate and necessary aim to protect the economic well-being of the UK through immigration control. There was no, or no adequate consideration of section 117B of the 2002 Act, including that immigration control is in the public interest.
13. In all the circumstances, it is clear that the decision of the First-tier Tribunal was flawed for error of law and cannot stand.
14. Mr Jesurum accepted that the reasoning of the First-tier Tribunal was deficient, but maintains that the judge should have considered in the alternative paragraph 284 of the Immigration Rules for further leave to remain, contending that the claimant meets those requirements, including that of an English language test. However, there was cross-appeal and the claimant made no application to the First-tier Tribunal to appeal the decision of the First-tier Tribunal's dismissal of the appeal on immigration grounds. EG & NG (Upper Tribunal rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 00143 (IAC), held that a party seeking to persuade the Upper Tribunal to replace a decision of the First-tier Tribunal with a decision that would make a material difference to one of the parties needs permission to appeal. The Upper Tribunal cannot entertain an application purporting to be made under rule 24 for permission to appeal until the First-tier Tribunal has been asked in writing for permission to appeal and has either refused it or declined to admit the application.
15. I reject Mr Jesurum's submission that I can determine the issue under paragraph 284, as no application was made to the First-tier Tribunal. I do not accept that it would be appropriate to, as he suggested, reconstitute myself as the First-tier Tribunal to consider and grant permission to appeal.
16. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal vitiates all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
17. In all the circumstances, I relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President's Practice Statement at paragraph 7.2. The effect of the error has been to deprive the appellant of a fair hearing and that the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
18. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the decision to the First-tier Tribunal to be made afresh with no findings of fact preserved.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 31 July 2020

Consequential Directions
19. The appeal is remitted to be reheard afresh in the First-tier Tribunal sitting at Taylor House, on a date to be fixed;
20. The appeal may be heard by any First-tier Tribunal Judge, except Judge Abebrese;
21. No findings of fact are preserved;
22. The estimated length of hearing is 2 hours;
23. Not later than 14 working days before the relisted appeal hearing the claimant must lodge with the Tribunal and serve on the Secretary of State a revised single, consolidated, paginated and indexed bundle of all subjective and objective materials relied on, together with any skeleton argument and copies of any case law to be relied on. The Tribunal will not accept documents submitted on the day of hearing.
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 31 July 2020