Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16917/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 1 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

Secretary of State for the Home Department
Appellant
and

OLUFEMI SAMSON OGUNYANKIN
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr. P. Nath, Home Office Presenting Officer
For the Respondent: Mr. A. Kaihiva, Counsel instructed by Corban Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Buckwell, promulgated on 1 August 2016, in which he allowed Mr. Ogunyankin's appeal against the Secretary of State's decision to refuse leave to remain on the basis of family and private life.
2. For the purposes of this decision I refer to the Secretary of State as the Respondent and to Mr. Ogunyankin as the Appellant, reflecting their positions as they were before the First-tier Tribunal.
3. Permission to appeal was granted as follows:
"The grounds argue that the judge has given inadequate reasons for allowing the appeal under paragraph 276ADE and therefore for the same reasons the findings in respect of article 8 are also infected.
Having carefully considered the judge's decision, I do find that the judge may have given inadequate reasons as to why there would be significant obstacles if the appellant were to be returned to his home country."
4. The Appellant attended the hearing. I heard submissions from both representatives following which I announced that I found that the decision involved the making of a material error of law, and that my full reasons would follow.
Submissions
5. Mr. Nath relied on the grounds of appeal. Paragraph [37] was a very short paragraph summing up the judge's findings. He did not explain what he meant by the Appellant having to "establish his lifestyle in an appropriate manner". There was no reference to any remittances which the Appellant might obtain from his family in the United Kingdom. There was no reference to any contact with his father. The judge went no further than the findings and reasons set out in paragraph [37]. There was no detail of any "very significant obstacles", and the decision lacked an assessment of what these obstacles were.
6. Mr. Kaihiva relied on the skeleton argument. The Respondent had not attended the hearing in the First-tier Tribunal. The judge set out the law from paragraphs [28] to [31]. In paragraphs [32] and [34] he stated that he was taking into account all of the evidence provided, and "those matters which I find to be factually applicable". He accepted that the judge could have phrased it better, but submitted that the judge had looked at the totality of the evidence. Had the Respondent been represented, the judge may have come to a different conclusion. The judge had summarised the evidence, and the Respondent had not attended to challenge this evidence. Taken as a whole, the decision was proper and adequate. It was not appropriate to look at one sentence and take it apart as the Respondent had done.
7. In response Mr. Nath submitted that there was no reference to the fact that the Appellant was a healthy male, in his 30s, who had acquired skills in the United Kingdom. The judge had found in paragraph [37] that the Appellant would need support on return, but he had not stated why. This was a situation which anyone would face on moving to another country. Although the Respondent had not been present, there was a duty on the judge to consider the reasons for refusal letter where the Respondent had set out in some detail why she considered that there were no "very significant obstacles". The judge had not taken this into account.
8. There was a discussion regarding an earlier reasons for refusal letter dated December 2014, as this decision had also looked at the issue of "very significant obstacles". However the decision under appeal dated April 2015 also considered the issue of "very significant obstacles", so the relevance of the earlier decision was limited.
Error of law Decision
9. The findings and reasons in relation to the appeal under the immigration rules are contained in paragraphs [32] to [38]. In paragraph [32] the judge states:
"I confirm that I take into account all evidence presented, including documentary evidence, whether or not specifically referred to hereafter. I refer also to my record of proceedings."
10. In paragraph [34] he states:
"In considering the term 'very significant obstacles' I take into account those matters which I find to be factually applicable on the basis of my assessment of the evidence in the round."
11. In paragraph [38] the judge states that his views "are based on my assessment of the evidence in the round and having found the Appellant and the supporting witnesses to have given truthful and credible evidence".
12. In paragraphs [33] and [34] the judge states that he needs to consider whether there are "very significant obstacles" to the Appellant's re-integration into Nigeria. However, there is no reference to this in the later paragraphs where the evidence is considered.
13. Paragraphs [35] and [36] do not address what obstacles the Appellant would face on return to Nigeria. In paragraph [35] the judge finds that the Appellant spent fifteen years in Nigeria, his formative years. This points in favour of him being able to re-integrate successfully. The judge refers to the fact that the Appellant has supported others in the United Kingdom. This suggests that, if he has been able to support others, he will be able to support himself in Nigeria, but this finding in and of itself does not have any bearing on the obstacles that he will face on return.
14. At [36] the judge finds that the Appellant has gained qualifications in the United Kingdom. He also finds that the evidence shows that he did so at his own expense. In addition to finding that he has gained skills which he could use on his return, if he had been able to gain qualifications at his own expense, this would indicate that he has resources available. However, there are no findings as to the resources which would be available to the Appellant in Nigeria.
15. Without making any further findings as to the situation that the Appellant would face in Nigeria, in paragraphs [37] or [38] the judge finds that paragraph 276ADE has been met. There are no specific findings or reasons given why a healthy male, in his 30s, who has spent the formative years of his life in Nigeria, and who has gained qualifications in the United Kingdom, would face "very significant obstacles" to his re-integration.
16. Paragraph [37] states:
"I am satisfied from the evidence presented that the Appellant does not have individuals upon whom or facilities upon which he can draw in Nigeria in order to establish his lifestyle in an appropriate manner in that country."
17. There is no explanation of what the judge means by this paragraph, but the implication is that the Appellant will need support on his return. However, there are no reasons given for why this is. There is no reference to any family that the Appellant may have in Nigeria. There is no requirement that the facilities on which he can draw have to be in Nigeria, but there is no reference to any support which he may obtain from family in the United Kingdom. Not having "individuals or facilities on which he can draw to establish his lifestyle in an appropriate manner" is not equivalent to him facing "very significant obstacles" to his re-integration.
18. Having found that the Appellant had spent 15 years in Nigeria, that he had supported others while living in the United Kingdom, and educated himself at his own expense, it was necessary to explain why the Appellant, a healthy male in his 30s, would face "very significant obstacles" on return to Nigeria. Given that the evidence when taken at face value does not show any very significant obstacles, it was incumbent on the judge to give adequate reasons for why he found that paragraph 276ADE(1)(vi) had been met. The ties that the Appellant has in the United Kingdom are relevant to this to the extent that such ties will offer him support on return to Nigeria, but the fact that he has ties in the United Kingdom cannot form "very significant obstacles" to his re-integration into Nigeria. Just because the support that he has in the United Kingdom would not be replicated in Nigeria such as to assist him to "establish his lifestyle in an appropriate manner" does not amount to "very significant obstacles".
19. I find that the judge has made a material error of law in his failure to give full reasons for why the Appellant would face "very significant obstacles" to his re-integration into Nigeria. I find that the finding that the immigration rules were satisfied has infected the judge's decision under Article 8 outside the requirements of the immigration rules.
20. Given that the Respondent was not represented in the First-tier Tribunal, and following discussion between the representatives, it was agreed that it would be appropriate to remit the appeal back to the First-tier Tribunal to be remade. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision
21. The appeal of the First-tier Tribunal involves the making of a material error of law and I set it aside.
22. No findings are preserved.
23. The appeal is remitted to the First-tier Tribunal for rehearing.

No anonymity direction is made.

Signed Date 31 January 2017

Deputy Upper Tribunal Judge Chamberlain