Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23955/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2017
On 15 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

the Secretary of State for the Home Department
Appellant
and

miss JOSEPHINE ATSUFI ADAKLUMEGAH
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Dr M Mauaza, Legal Representative, Walters Solicitors

DECISION AND REASONS
Background
1. The appellant in this appeal is the Secretary of State and the respondent Miss Adaklumegah. However, for the purposes of this Decision and Reasons I refer to the parties as they were before the First-tier Tribunal where Miss Adaklumegah was the appellant.
2. Miss Adaklumegah is a citizen of Ghana aged 33. She originally entered the UK on 30 May 2004 with a valid visit visa. She made various unsuccessful applications for leave to remain, the final application, made on 30 December 2011, being rejected by the respondent in a decision dated 29 February 2012. In a determination promulgated on 23 August 2012 Judge of the First-tier Tribunal Williams allowed her appeal. The respondent granted Miss Adaklumegah leave to remain under Appendix FM valid until 2 April 2015. On 30 March 2015 Miss Adaklumegah applied for further leave to remain. That application was refused by the Secretary of State on 10 June 2015. The appeal came before the First-tier Tribunal on 15 August 2016. In a decision promulgated on 19 September 2016 Judge of the First-tier Tribunal Rodger allowed the appellant’s appeal to the extent that it was remitted back to the respondent for further consideration.
3. The Secretary of State appealed on the ground that the judge had materially erred in law in failing to have proper regard to the respondent’s position. The First-tier Tribunal found, at [14], that the respondent had made no reference to the previous decision of Judge Williams, when in fact the refusal letter stated:
“I note that your application was submitted on the basis that you were applying for an extension of previously issued discretionary leave to remain. Our records show that you were previously issued leave under Appendix FM of the Immigration Rules, as detailed in our letter of 3 October 2012 which stated ‘Although your client does not meet the requirements of paragraph EX1 of Appendix FM, Leave to Remain has been granted in accordance with the direction by Judge of the First-tier, Judge A R Williams on 20 August 2012’.
Your application has therefore been considered under Appendix FM of the Immigration Rules.”
(Page 2 of the refusal letter)
4. The grounds for permission to appeal argue that the judge materially erred in not considering the refusal letter and dealing with the appeal under the relevant appeal provisions and it was clear that the previous Tribunal decision was considered in the refusal, taking account of the evidence presented with the current application.
Error of Law
5. Mr Clarke on behalf of the Secretary of State relied on the grounds of permission to appeal. Mr Clarke also relied on the Upper Tribunal decision in Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) and referred me in particular to paragraph 21 submitting that Judge Rodger had gone too far in remitting the appeal to the Secretary of State when in fact Greenwood confirmed that remittal is not one of the disposal paths now available. Mr Clarke submitted that this was an application and an appeal in relation to Article 8 and it was for the judge to consider the position at the date of the hearing. It was not argued that any transitional provisions applied. He submitted the previous determination was of little relevance.
6. Mr Clarke also submitted that at [15] the judge noted that it was the appellant’s case that she is still in a relationship with a British citizen partner and is now mother of a child who is entitled to British citizenship. Mr Clarke submitted that there was no evidence of this and it was a matter for the First-tier Tribunal to determine whether the appellant met the relevant requirements of the Immigration Rules in relation to Article 8.
7. Although Dr Mauaza’s submissions before me were initially somewhat contradictory, he conceded that the judge had made a material error of law and in his submissions the judge should have made findings that allowed the appeal outright on the basis of the previous decision of Judge Williams.
8. I did not agree with Dr Mauaza’s submission that the decision of Judge Williams in 2012 could bind any subsequent First-tier Tribunal in the manner submitted. However, I agree with both representatives that the First-tier Tribunal materially erred in law in remitting the case to the respondent.
9. It was incumbent on the First-tier Tribunal to make substantive findings on whether or not the appellant met the requirements of Appendix FM, the Immigration Rules or could otherwise succeed under Article 8. There is an absence of reasoning. In addition there is a material error of fact on the part of Judge Rodgers in finding that the Secretary of State did not take account of the findings of Judge of the First-tier Tribunal Williams when the respondent referred to that decision.
10. In order for inadequacy of reasoning by the First-tier Tribunal to constitute a material error of law, it must be demonstrated that the matter involved a substantial issue between the parties before the First-tier Tribunal and that the First-tier Tribunal failed to deal with that matter at all, or gave reasons on that point which are unclear. VV (grounds of appeal) Lithuania [2016] UKUT 53 (IAC) applied. The decision of the First-tier Tribunal was flawed as it failed to adequately address the decision of the Secretary of State to refuse the appellant’s application under paragraph 276ADE(1) and that there were no exceptional circumstances in the appellant’s case.
11. Although Dr Mauaza submitted that the Upper Tribunal should allow the appellant’s appeal, again on the basis of the 2012 findings of Judge Williams, that cannot be right. There have been as yet no findings of fact in relation to the appellant’s private and family life as at the relevant date as the only findings relied on relate to 2012. Although Judge Rodger referred to the appellant now having a child in the UK who is entitled to British citizenship the judge failed to make any findings in this regard or to apply the relevant tests to those findings.

Notice of Decision
12. The decision of the First-tier Tribunal contains an error of law capable of affecting the outcome of the appeal and is accordingly set aside. The nature and extent of the fact finding required is such that I remit the appeal to the First-tier Tribunal, other than to Judge Rodger for a decision de novo. No findings of fact are preserved.

Anonymity Direction
Although Judge Rodger made an anonymity direction and the appellant has a child, there is nothing to identify that child or any specific information or evidence in this decision which might identify them. I therefore do not make an anonymity direction.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson