Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27339/2014

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 3rd February 2017
On 15th February 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

Zakia Khatoon
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Jessarum, Counsel
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a citizen of Pakistan (born 14th January 1968) appeals with permission to the Upper Tribunal against the First-tier Tribunal (Judge Froom) which in a decision promulgated on 15th March 2016 dismissed the Appellant's appeal against removal. The Appellant had claimed that removing her from the UK would breach her Article 8 ECHR family/private life.
Background
2. There is a history to this appeal. Briefly, it is the Respondent's case that the Appellant's removal from the UK is justified because it is said that in the past (March 2009) she provided false documentation in order to obtain further leave to remain here.
3. The false documentation took the form of a postgraduate qualification in management together with an academic reference from London College of Professional Studies "LCPS". The Respondent's refusal rests in part on the reported decision of VVT (LCPS: no postgraduate diplomas) India [2011] UKUT 00162 (IAC).
4. The Appellant's case, as set out in the appeal before the FtT, is that she enjoys a family/private life with her brother and as a central issue, she did not practice deception as set out by the Respondent. In effect, she was a victim of a dispute which arose when the former owner of LCPS, one Professor Walemba, sold the business to a Mr Naveed Mohammed.
5. The difficulty for the Appellant is that in VVT, clear findings of fact were made accepting the credibility of Professor Walemba.
6. When the present appeal came before the FtT, the judge was informed that the Appellant's had now assembled evidence designed to throw doubt on the safety of following VVT. That evidence included a statement made by Mr Naveed Mohammed in the course of another appeal (IA/03058/2010), an unreported case. Mr Naveed Mohammed's comments in that case however suggest that the Tribunal in VVT was seriously misled by Professor Walemba's evidence.
7. Accordingly the Appellant made efforts to trace Mr Naveed Mohammed and indeed he has been traced to a restaurant in East London. Unfortunately at the time of the hearing before the FtT, Mr Naveed Mohammed was in India and unable to attend. No witness summons had been obtained to ensure his attendance. In any event the FtT ruled that it was disinclined to dislodge the findings of the Tribunal in VVT advising it was not entitled to do so [7]. The result of that ruling was that Counsel for the Appellant did not call evidence which may have been available. The judge went on to dismiss the Appellant's appeal.
Onward Appeal
8. Permission to appeal to this Tribunal was granted by UTJ Rimington in the following terms:
"1. The grounds assert that there is no statutory authority that the Upper Tribunal's findings of fact bind a later tribunal in a different appeal. Rather the findings have the relevance of previous findings in any previous appeal as provided for by Devaseelan [2012] UKIAT 00702. Further, even if the First-tier Tribunal were bound the Upper Tribunal has jurisdiction to re-open an appeal where it is in the interests of justice.
2. It may be that any new evidence casting light on previous findings would have no merit, but at [10] the Judge stated that in the light of his initial indication at the hearing that he saw no means of coming to a finding contrary to that of the Upper Tribunal, Counsel did not even call evidence and was content that the appeal be dismissed on that basis. The grounds are arguable see Mubu (immigration appeals-res judicata) [2012] UKUT 00398 (IAC)."
Thus the matter comes before me to decide whether the decision of the First-tier Tribunal contains an error of law requiring it to be set aside and remade.
Error of Law
9. I heard submissions from Mr Jessarum and Mrs Pettersen. Mr Jessarum's submissions are set out in the grounds seeking permission. The main thrust of his argument centred on his first ground. He submitted that the findings of fact set out in VVT are not binding on a later Tribunal in a different appeal. Mrs Pettersen at this stage helpfully indicated that she was of the view that the FtT judge's decision did contain an error in this respect. The FtT judge had effectively cut short the evidence which may be available, by declining to entertain Counsel's request for a witness summons to ensure Mr Naveed Mohammed's attendance.
10. Following submissions, I find I am satisfied that the FtT's decision contains a material error of law for the following reasons.
11. It has always been the case that the principle of res judicata does not operate in immigration appeals, and in any event if there is new evidence available to a party, which casts a light on any previous findings, then it is right that this evidence is tested.
12. This brings me to the second point, which is that the Appellant should be given a proper opportunity to bring that new evidence before a Tribunal. There is, according to Mr Jessarum (and accepted by Mrs Pettersen) prima facie evidence that Mr Naveed Mohammed can provide new evidence which may assist the Appellant in her claim. It may require a witness summons for that evidence to be brought forward, but that will be a matter for application to another Tribunal. In these circumstances the decision of the FtT is set aside for material error.
13. Mrs Pettersen submitted that should the decision be set aside, the matter should be remitted to the First-tier Tribunal for the appeal to start afresh. Mr Jessarum wanted the matter kept to the Upper Tribunal on the grounds that any evidence that was brought forward may tend to show that the Upper Tribunal had been lied to by a witness and that would be a serious matter indeed.
14. He also wished to point out that in any event a finding should be made on whether the Upper Tribunal has jurisdiction to reopen an appeal where it is in the interests of justice to do so. I find in view of my decision to set aside the FtT's decision, that is not a matter upon which it is necessary to adjudicate.
15. So far as the venue for remaking the decision is concerned, I find that it is appropriate that the matter be remitted to the First-tier Tribunal. This is on the basis that the decision is to be made afresh and that none of the findings of the First-tier Tribunal are preserved. The correct process is for the First-tier Tribunal to act as the fact-finding Tribunal.
16. Because it may well be necessary for a witness summons to be obtained I direct that in order to assist the listing of this matter the appeal should be set down for hearing at Taylor House. This will assist in ensuring Mr Naveed Mohammed's attendance and will assist Counsel who retains this matter.

Notice of Decision

The decision of the First-tier Tribunal is set aside for material error of law. The matter is remitted to that Tribunal (not Judge Froom) for a fresh hearing de novo, with no findings preserved.

No anonymity direction is made.

Signed C E Roberts Date 14 February 2017

Deputy Upper Tribunal Judge Roberts