Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/17890/2015
IA/17891/2015, IA/17892/2015
IA/17893/2015, IA/17894/2015

THE IMMIGRATION ACTS

Heard at Stoke
Determination Promulgated
On September 30, 2016
On October 4, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE alis

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

alice [a]
simeon [o]
[k o]
[j o]
[c o]
(NO ANONYMITY DIRECTION MADE)
Respondents

Representation:
Appellant Mr Bates (Home Office Presenting Officer)
Respondent Ms Warren, Counsel, instructed by Paragon Law

DECISION AND REASONS

1. The respondent in these proceedings was the appellant before the First-tier Tribunal. From hereon I have referred to the parties as they were in the First-tier Tribunal so that for example reference to the respondent is a reference to the Secretary of State for the Home Department.

2. The appellants, citizens of Nigeria, applied for leave to remain in the United Kingdom. The respondent refused their applications on April 28, 2015 and issued removal directions.

3. The appellants appealed on May 12, 2015 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

4. The appeal was heard by Judge of the First-tier Tribunal Parker (hereinafter referred to as "the Judge") on March 3, 2016 and in a decision promulgated on March 17, 2016 she allowed their appeals as set out in her decision.

5. The respondent appealed those decisions on the ground the Judge had materially misdirected herself in law. The grounds were based on the Judge's approach to reasonableness of return and how she treated the third appellant's stay in the United Kingdom. Permission to appeal was granted by Judge of the First-tier Tribunal Dineen on August 4, 2016.

6. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.

PRELIMINARY ISSUE

7. Mr Bates indicated he wished to argue a fresh ground albeit it had not been one raised in the grounds of appeal or in any additional letter. He said the respondent should have appealed the decision to allow the first-named appellant's appeal because by not doing so the respondent had a problem due to the fact the first-named appellant had been allowed under paragraph 276ADE(vi) HC 395 which is a higher test than either paragraph 276ADE(iv) or article 8 ECHR. He submitted the Judge had erred and it was a Robinson obvious error because the Judge had erroneously stated that the mother had spent all her life here except for four years.

8. Ms Warren opposed the application and stated that the respondent was not entitled to add grounds to the appeal at this stage. Case law was clear in that grounds of appeal had to be submitted to the First-tier Tribunal and today's hearing was based on the grant of permission. She further submitted the error, if there was one, was not Robinson obvious as the Judge clearly was aware of all the facts as they were contained in the decision. The reference to four years was a poorly worded phrase and there was no basis to expand the grounds of appeal.

9. Having heard submissions I refused Mr Bates's application.

10. In EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 143 (IAC) the Tribunal held that a party that seeks 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.

11. In Nixon (permission to appeal: grounds) [2014] UKUT 00368 (IAC) the Tribunal said that "Whilst making due allowance where an applicant for permission to appeal to the Upper Tribunal is unrepresented and in respect of the requirement to consider obvious points arising under the Refugee Convention or ECHR (R v SSHD ex parte Robinson [1997] 3 WLR 1162), the First-tier Tribunal and the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party."

12. The respondent has a team that deals with permissions to appeal. This application for permission to appeal was dealt with by the team and was typed out and lodged in time. Nothing I heard from Mr Bates persuaded me that leave should be extended. The decision when taken as a whole demonstrated full engagement in the facts. Whilst the decision could be viewed as generous that was not the preliminary issue being raised by Mr Bates. I am satisfied that there is no basis to extend the grounds available to Mr Bates.

13. In light of my decision Mr Bates indicated that he was now in some difficulty arguing the grounds he had been given permission on because the Judge had found there were very significant obstacles to the first-named appellant's re-integration into Nigeria the tests applied under paragraph 276ADE(iv) HC 395 and article 8 ECHR were less onerous as they were based on a reasonableness on return test.

14. I indicated to Mr Bates that I agreed with his assessment of the case and that as the first-named appellant had been granted leave it would be both unreasonable and disproportionate to require the remaining family members to leave.

15. I invited comments from Ms Warren but she agreed with what both Mr Bates and I had said.

16. I therefore found no error in law.

DECISION

17. There was no material error. I uphold the Judge's original decision to allow the first and third-named appellants' appeals under the Immigration Rules and the second, fourth and fifth-named appellants' appeals under article 8 ECHR.

Signed: Dated: October 4, 2016

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT

FEE AWARD

I uphold the original fee award.

Signed Dated: October 4, 2016

Deputy Upper Tribunal Judge Alis