Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04237/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 9 August 2016
22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

pinky [G]
(no anonymity order)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Appellant in person

DECISION AND REASONS
1. The appellant Secretary of State appeals to the Upper Tribunal with permission against the decision and reasons statement of First-tier Tribunal Judge Holt that was promulgated on 18 August 2015. Judge Holt allowed the appeal against the Home Office decision of 12 January 2015 in the belief that removing Ms [G] would be disproportionate on private and family life rights grounds, primarily because of Ms [G]'s child and partner.
2. Ms [G] was without legal representation. She attended the hearing with her partner and their son. The Tribunal provided a Punjabi interpreter through whom I explained to Ms [G] and her family why the Secretary of State challenged the judgment of Judge Holt and what my role was. Ms [G] was content with my explanation and understood that part of my role was to ensure that she could participate in the proceedings.
3. Mr Mills argued that Judge Holt had failed to have proper consideration to the question of whether it was unreasonable to expect Ms [G]'s son to leave the UK even though he has lived in the UK for well over seven years. Mr Mills reminded me that the Court of Appeal had recently reviewed the law in this area (see MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705) and although Judge Holt had no access to that judgment she should have been guided by the early guidance it upheld.
4. As I indicated at the end of the hearing, I agree. It is clear that Judge Holt regarded the seven-years residence of Ms [G]'s son as if it were a trump card. It is not. It is also evident that Judge Holt failed to have full regard to Ms [G]'s family circumstances. She was living with her partner and their son, yet Judge Holt failed to take account of the relationships. Instead, Judge Holt regarded Ms [G] as having sole responsibility for the child ignoring the presence and involvement of the child's father. The situation may have been somewhat confused since the Home Office has not indicated what action it proposes to take against Ms [G]'s partner, who appears to have no current immigration status, but that did not prevent Judge Holt having regard to the facts as presented. On the face of it, the family should have been regarded as a unit and all aspects should have been assessed.
5. Because I am satisfied Judge Holt erred in law, I set aside her decision and reasons. This appeal must start again because the approach taken means that insufficient findings were made by the First-tier Tribunal to enable me to remake the decision. As per the Senior President's Practice Statement, this is an appeal which must be remitted for a fresh decision on all aspects.
6. I direct that the appeal is remitted for a de novo hearing in the First-tier Tribunal by any judge other than Judge Holt.
Decision
The decision and reasons statement of Judge Holt contains an error of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing on all issues before any judge other than Judge Holt.

Signed Date 22nd August 2016

Judge McCarthy
Deputy Judge of the Upper Tribunal