Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10008/2015
IA/10014/2015
IA/10021/2015
IA/10023/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3rd August 2016
On 4th August 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
GA BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MR IMRAN ALI
(and 3 Claimants )
Claimant/Respondent
NO ANONYMITY OrDER MADE

Representation:

For the Appellant: Mr T Melvin (Senior Home Office Presenting officer)
For the Respondent: Mr A Malik (Counsel instructed by Maroof solicitors)

DECISION AND REASONS

1. The appellant in this error of law hearing is the Secretary of State and I shall refer to the parties as " the Secretary of State" and to the appellants from the First-tier Tribunal as " the Claimants".

2. The Secretary of State appeals against a decision made by the First-tier Tribunal ( Judge DA Pears) ("FTT") promulgated on 5th February 2016 in which the appeal against a refusal of leave to remain outside of the Rules was allowed to the extent that the decision made was not in accordance with the law and it was remitted for reconsideration by the Secretary of State of her obligations under section 55 Borders Citizenship & Immigration Act 2009, paragraph 276 ADE of the Immigration Rules and Article 3 ECHR. The appeal was determined on the papers.

3. In grounds of application for permission the Secretary of State argued that the FTT erred because the refusal letter had considered all the relevant issues and that the FTT ought to have decided the appeal on the papers before it.

4. Permission was granted on the grounds that the decision made by the Secretary of State was not unlawful and that all the relevant issues had been dealt with in the refusal letter. It was unclear how the FTT came to the decision that it did in paragraph 11 of the decision where it is asserted that the Secretary of State failed to give detailed consideration to the issues.

5. At the hearing before me Mr Melvin relied on the grounds of the application and Mr Malik produced a skeleton argument. He argued that the decision for reconsideration was not an error of law given the limited consideration made of the matters submitted in the application and which had not been given detailed scrutiny by the Secretary of State. Mr Melvin submitted that it was incumbent of the FTT to determine the appeal on the papers and for the FTT to consider the evidence before it in the light of the points raised in the refusal letter. In any event there was no longer any power for the FTT to remit for reconsideration.

6. I decided that there was a material error of law in the decision and reasons which I set aside. The Claimants who were legally represented requested a hearing on the papers and produced evidence in support of their appeal. There was before the FTT a detailed skeleton argument setting out the relevant evidence and submissions. It was a matter for the FTT to consider all of the evidence before it and make finding and conclusions accordingly. I am satisfied that the Secretary of State did consider all the relevant issues raised in the refusal letter. There was no indication on the part of the Claimants in their grounds of appeal that the refusal decision was inadequate and in any event the FTT was able to take into account all the evidence relied on by the Claimants. It was not made clear how the Secretary of State erred in her failure to consider section 55 having regard to the evidence relied on. The Secretary of State considered that the interests of the children lay in remaining with their parents as a family unit. Further it was open to the Claimants to make an application for asylum as was indicated in the refusal letter.

Decision

7. The Secretary of State's appeal is allowed. There is a material error of law in the decision which is set aside. I remit the matter for re hearing at the FTT (excluding Judge Pears) at Hatton Cross. As there were no findings of fact made nor any engagement with the issues under appeal a hearing de novo is required.

Signed Date 3/8/2016

GA Black
Deputy Judge of the Upper Tribunal

No anonymity order

No fee award.

Signed Date 3/8/2016

GA Black
Deputy Judge of the Upper Tribunal