Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19011/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 March 2017
On 12 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

muhammad amin khan
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Raw, counsel instructed by AKL solicitors
For the Respondent: Ms Ahmed, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Pakistan born on 31 March 1985. He appealed against the decision by the Respondent dated 5 May 2015 refusing to grant him further leave to remain in the United Kingdom. The application for further leave to remain was based on his family and private life with his partner and his partner’s children. His appeal came before Judge of the First-tier Tribunal Mace for hearing on 29 June 2016. In a decisions and reasons promulgated on 4 July 2016, the judge dismissed the appeal essentially on the basis that he did not accept that the Appellant had a genuine and subsisting relationship with either his partner or her children [21]. Throughout the decision, there is reference to the fact that in the decision letter of 5 May 2015 there were references to the Appellant being the subject of a deportation order and consequently that the Appellant was unable to qualify under the suitability requirements of Appendix FM. The judge makes reference to the deportation order at paragraphs 3, 4, 13 and 15 of the decision. The grounds in support of the renewed application for permission to appeal assert that it is clear from the documents before the First-tier Tribunal Judge that there was no deportation order in place and that the determination relying on the existence of the deportation order is wrong in law. Consequently, it was contended that the determination was unsafe and could not stand. In relation to the issue of the genuineness of the relationships between the Appellant and his partner and her children at [22] of the decision, the grounds of appeal contend that the judge’s finding that there was not a genuine and subsisting relationship was unsustainable in light of the evidence that they were living as a family unit at the same address and had done so since 2012.
2. Permission to appeal was granted by Upper Tribunal Judge Clive Lane on 9 January 2017 on the basis that the first ground of appeal was arguable and “that the Respondent should be prepared to prove that the form IS151A was served on the Appellant and the Appellant should be prepared to show how the outcome of the appeal may have been different if the form was not served. The remaining ground is weaker but may be argued before the Upper Tribunal”. The Respondent served a Rule 24 Notice dated 28 February 2017 and sent out on 7 March 2017, which provides as follows at [3]: “the Appellant is subject to removal in respect of Section 10 of the Immigration and Asylum Act 1999 and not a deportation order. The reference to the deportation order in the refusal letter is an error …”. The Respondent maintains that in any event it makes no material difference to the outcome of the appeal.
The Hearing
3. At the hearing before me Ms Ahmed, on behalf of the Home Office, sought to rely upon the Rule 24 response and submitted that, even if there was an error in relation to the issue of deportation, this was not material unless there was also a material error in relation to the second ground.
4. I heard submissions from Mr Raw on behalf of the Appellant. His position was that essentially the entire determination was infected or contaminated by the error in relation to the deportation order, given that it was in the judge’s mind from the outset that the Appellant did not meet the suitability requirements whereas in reality he did because there was no deportation order. Mr Raw also took issue with the judge’s finding as to the genuineness of the relationship given that the Appellant, his partner and children had been living together since 2012 in a family unit and whilst he accepted that evidence of cohabitation does not necessarily equate to a subsisting relationship, he submitted that this was not something that had been properly considered by the judge.
5. I also heard submissions in response from Ms Ahmed, who submitted that it was necessary to look at all the evidence in the round. There were clear inconsistencies that the judge highlighted at [16] and [21] in relation to the interviews with the Appellant and his Sponsor. These were not challenged in the grounds of appeal and were sustainable.
Decision
6. I find that the judge erred materially in law in that it is clear that the judge’s erroneous belief, based on an error by the Respondent in the decision letter of 5 May 2015, that the Appellant had been served with an IS151A on the basis that he was subject to a deportation order, did arguably infect his perception of the case as a whole. It cannot, in my view, safely be said that the judge would have reached the same conclusion were the issue of deportation absent from the outset of his consideration of the appeal. It is the case that the judge made negative findings in respect of the relationship that are reasoned, however, I have concluded that those findings may also have been infected by his misperception of the Appellant as somebody subject to a deportation order, which was clearly at the forefront of his mind and was referred to at paragraphs 3, 4, 13 and 15 of the decision. Consequently, none of the findings can safely be maintained.
7. Whilst I have found a material error of law in the decision of the First tier Tribunal Judge, I am bound to add that this is not a matter which should have been necessary for the Upper Tribunal to intervene, given the Appellant’s consistent position was that he was not subject to any form of deportation. Thus it was incumbent upon those representing him to raise this with the Respondent ideally prior to the hearing or at the very least at the hearing before the First tier Tribunal, so that the judge was not misled into believing something which simply was not the case. The Appellant’s representatives do bear responsibility for this, which may be a factor in the decision on costs when this appeal is ultimately determined.
8. For these reasons the decision cannot stand and it is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Mace. I make the following directions:
(1) That the Respondent serve an amended refusal decision omitting any reference to the service of a deportation order, in light of the fact that the Respondent clearly accepts that that was erroneous.
(2) The appeal be listed for two hours.
(3) There shall be no interpreter. If the Appellant wishes to have the benefit of the assistance of an interpreter it will be necessary for him to write requesting that at least fourteen days prior to the relisted hearing.
No anonymity direction is made.

Signed Rebecca Chapman Date 9 April 2017

Deputy Upper Tribunal Judge Chapman