IA/11763/2015

• Status of case: Unreported
• Hearing date: 26 Oct 2016
• Promulgation date: 27 Oct 2016
• Publication date: 14 Apr 2020
• Last updated on: 14 Apr 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11763/2015


THE IMMIGRATION ACTS


Heard at Bradford
Decision & Reasons Promulgated
On 26 October 2016
On 27 October 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER


Between

MOHAMMAD BURHAN UDDIN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: no representative and Appellant did not attend
For the Respondent: Mrs Peterson a Home Office Presenting Officer


DECISION AND REASONS

Background

1. I make no anonymity order as none was requested and it is not required. The Appellant had requested the appeal be heard in his absence. I did as there was no unfairness in proceeding as he was aware of the date time and venue of the hearing.

2. The Respondent refused the Appellant's application for leave to remain on 10 March 2015. His appeal on human rights grounds against this was dismissed by First-tier Tribunal Judge Owens ("the Judge") following a hearing on 26 April 2016.

The Judge's findings

3. In summary the Judge found that there were no insurmountable obstacles to him returning to live in Bangladesh. In relation to his fear of ill treatment by the government due to his political activity, he could make an asylum claim.

The grant of permission

4. First-tier Tribunal Judge Nicholson granted permission to appeal (20 September 2016) on the ground that it is arguable that having made a claim protection, that should have been considered within the framework of article 3 as that would have impacted on the article 8 claim.

Appellant's position

5. In his application covering letter (22 January 2015) he said that in Bangladesh he was a leader of Bangladesh Jamat e islami (BJI) politics and before that was a leader of Bangladesh Islami Chatra Shibir (student wing of BJI). He suffered ill treatment and inhuman treatment at the hands of the Awami regime who were the ruling party. False cases were laid against him. He fears for his life and safety.

Respondent's position

6. In the refusal letter (10 March 2015) it was said he should apply for asylum. His application for protection was therefore ignored. Mrs Peterson conceded that the article 3 claim should have been considered by the Judge as it fell within the human rights ambit of the appeal.

Discussion

7. The Respondent's refusal to consider his protection claim has damaged her ability to test his article 3 claim. That is a matter for her. Having made the protection claim and appealed on human rights, his article 3 claim should have been determined by the Judge as it was before him.

8. I am therefore satisfied that the Judge made a material error of law.

9. Having heard submissions, I decided to remit the matter to the First-tier Tribunal for a fresh hearing with no findings preserved to enable the article 3 claim to be determined. That decision would impact on the article 8 decision.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the matter to the First-tier Tribunal to be heard by a Judge other than Judge Owens.


Signed:
Deputy Upper Tribunal Judge Saffer
26 October 2016