IA/25690/2015

• Status of case: Unreported
• Hearing date: 30 Jan 2017
• Promulgation date: 22 Mar 2017
• Publication date: 8 Mar 2022
• Last updated on: 8 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25690/2015


THE IMMIGRATION ACTS


Heard at Birmingham
Decision & Reasons Promulgated
On 30 January 2017
On 22 March 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

WALTON JOE SCHOOLER
(ANONYMITY DIRECTION NOTE MADE)
Respondent


Representation:
For the Respondent: Mr J Neville of Counsel
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Frankish sitting at Stoke-on-Trent. The original Appellant was Mr Schooler, but to ease following this decision I shall continue to refer to him as the Appellant although it is the Secretary of State who brings this appeal.

2. The Judge had allowed the Appellant’s against the Respondent’s decision contending that his removal would not amount to a breach of the European Convention on Human Rights.

3. The Respondent’s ground of appeal is referred to as being in the singular, contending that there was a material misdirection of law, but in fact there are two distinct grounds. Those being:

(1) The Judge said he had applied the “lower standard of proof of a reasonable likelihood”. As this was not a protection case then the standard of proof which should have applied was the balance of probabilities;
(2) The Judge was wrong to conclude on the facts that it would not be unreasonable for the Appellant’s child to leave the United Kingdom.

4. Permission to appeal was granted by First-tier Tribunal Judge Pedro.

5. At the hearing before me Mr Duffy said the second ground of appeal was one which many people were running. He did not seek to amplify it. Where there was no expectation that the child will leave the jurisdiction then it will not engage Section 117B(6) Nationality Immigration and Asylum Act 2002. It precluded it being argued. He said he did not think that there was much in it.

6. Mr Duffy also said that it was trite law that in this jurisdiction, other than for protection cases, the standard of proof is the balance of probabilities and the lower standard is for protection claims. It is trite law he said that for Article 8 the standard of proof is a balance of probabilities.

7. Mr Neville had provided a detailed skeleton argument with authorities. He said in his oral submissions that he would rely on that. He referred to the case of Shamim Box1. In particular paragraphs 25 and 26 of the Tribunal’s determination. There was a difference between removal and entry clearance. He said that just because there was a common misunderstanding about the standard of proof, it did not mean that it is correct to follow that misunderstanding.

8. In his skeleton argument, Mr Neville referred to various other authorities, including:
(1) Naz (subsisting marriage-standard of proof) Pakistan [2012] UKUT 00040 (IAC). Although that case referred to the balance of probabilities as being the correct test, it was not a reasoned authority and itself referred to no authority
(2) Karankaran v Secretary of State for the Home Department [2000] INLR 122;
(3) R (Quilar) v Secretary of State for the Home Department [2012] 1 AC 621

9. In so far as the Respondent’s ground in respect of Section 1179(B)(6) is concerned, it was submitted that the ground was absurd.

10. I had reserved my decision.

11. Whilst I admire the ingenious argument being put forward by Mr Neville in relation to the standard of proof to be applied, I am also aware that the argument has been the subject of unreported cases for some period of time and indeed raised at least in grounds of appeal and skeleton arguments in the higher courts over recent years. In my judgment, the Judge did apply the wrong standard of proof when he allowed the appeal. As the case of Naz shows, the balance of probabilities is the correct test. I follow Naz. I conclude insufficient reasons have been put forward why I should not.

12. The error of law by the Judge was a material error of law. The error was capable of affecting the decision which was reached. Whilst, like Mr Duffy, I “do not think there is much in” the ground of appeal in respect of the section 117(B)(6) issue, it is impossible to separate that issue from the standard of proof aspect. As a consequence, in my judgment the whole of the Judge’s decision has to be set aside.

13. I therefore conclude that the matter has to be re-heard. I have decided that the re-hearing shall take place at the First-tier Tribunal. None of the current findings shall stand. The re-hearing will be in respect of all issues.


Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal is set aside.
There shall be a re-hearing at the First-tier Tribunal

No anonymity direction is made.



Signed Date 27 February 2017

Deputy Upper Tribunal Judge Mahmood