IA/20664/2014

• Status of case: Unreported
• Hearing date: 13 Jan 2017
• Promulgation date: 13 Jan 2017
• Publication date: 15 Jun 2021
• Last updated on: 15 Jun 2021

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20664/2014


THE IMMIGRATION ACTS


Appeal decided on the papers
At Field House
Decision & Reasons Promulgated
On 13 January 2017
On 13 January 2017



Before

Deputy Upper Tribunal Judge Pickup


Between

Romario Antonio Melhado
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent


DECISION AND REASONS
1. The appellant, Romario Antonio Melhado, date of birth 17.2.96, is a citizen of Jamaica.
2. This is his appeal against the decision of First-tier Tribunal Judge Cassel promulgated 3.6.16, dismissing on all grounds his appeal against the decision of the Secretary of State to refuse his application made on 12.2.14 for indefinite leave to remain (ILR) on human rights article 8 ECHR private and family life grounds. The Judge heard the appeal on 16.5.16.
3. First-tier Tribunal Judge Andrew granted permission to appeal on 30.11.16.
4. In granting permission to appeal, Judge Andrew noted that the First-tier Tribunal Judge appears to have proceeded under the misapprehension that there was a deportation order and that the appeal was against the decision to make such an order. There was no proper consideration of section 55 in relation to the appellant's child and impact of removal of the appellant. Further, there was no consideration under section 117B of the 2002 Act as to whether it would be reasonable to expect the child, a British citizen, to leave the UK to relocate to Jamaica.
5. The Rule 24 reply of the Secretary of State, dated 30.12.16, does not oppose the appeal and accepts that the First-tier Tribunal misdirected itself as to law, proceeding on the basis that the appeal was against an order to deport the appellant under section 32 of the UKBA 2007, when in fact no such order had been made.
6. The Secretary of State invites the Upper Tribunal to remit the appeal to the First-tier Tribunal with a direction that it be heard de novo by a different judge.
7. Following receipt of the Rule 24 reply, the appellant's representatives wrote to the Upper Tribunal on 11.1.17, inviting the matter to be placed before an Upper Tribunal Judge and for the listed error of law hearing of 13.1.17 to be vacated.
8. In the light of the correspondence, and on the instructions of an Upper Tribunal Judge, the Upper Tribunal directed that the appeal before the Upper Tribunal would be dealt with on the papers on 13.1.17 and that the parties need not attend the hearing.
9. Thus the matter came before me on 13.1.17 as an appeal in the Upper Tribunal.
10. It is clear and I am satisfied that the First-tier Tribunal Judge proceeded on an entire misunderstanding of the nature of the decision of the Secretary of State under appeal. There was no deportation order and consideration of the appeal under the Rules and statute law in relation to deportation was a manifest error of law.
11. The other points made in the grounds of application for permission to appeal to the Upper Tribunal and in the grant of permission are also well made.
12. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. The errors of the First-tier Tribunal Judge vitiates all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
13. In all the circumstances, at the invitation and request of both parties to relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President's Practice Statement at paragraph 7.2. The effect of the error has been to deprive the appellant of a fair hearing and that the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
14. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to the First-tier Tribunal to be remade.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 15 June 2021


Deputy Upper Tribunal Judge Pickup
Consequential Directions
15. The appeal is remitted to the First-tier Tribunal sitting at Taylor House;
16. The ELH is 2 hours;
17. The appeal is to be heard and decided afresh, de novo, with no findings of fact preserved;
18. No interpreter is required;
19. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge Cassel;
20. The appellant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
21. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award (rule 23A (costs) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007).
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.


Signed

Deputy Upper Tribunal Judge Pickup

Dated 15 June 2021