IA/28265/2015

• Status of case: Unreported
• Hearing date: 30 May 2017
• Promulgation date: 14 Jun 2017
• Publication date: 1 Aug 2017
• Last updated on: 1 Aug 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28265/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 30 May 2017
On 14 June 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

omar givanni clarke
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Ms A Bhachu, instructed by JM Wilson, Solicitors
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer


DECISION AND REASONS

1. The appellant appeals with permission against the decision of FtT Judge Fox that was issued on 2 September 2016.
2. No anonymity direction was made by the First-tier Tribunal and there is no reason to make such an order in the Upper Tribunal.
3. At the outset of the hearing, Ms Bhachu and Ms Aboni informed me that having discussed the case they were agreed that Judge Fox had failed to have proper regard to article 8 ECHR because he had failed to make necessary findings; and that his failure to make necessary findings amounted to an error on a point of law.
4. I was advised that Judge Fox did not make findings about whether the appellant had resided in the UK for over thirteen and a half years as claimed, about whether the nature of the appellant's convictions meant he did not meet the suitability requirements of the immigration rules, or about whether the appellant's criminal record meant his personal circumstances were outweighed by the public interest.
5. Having considered the decision and reasons statement, I am satisfied Judge Fox has not given adequate attention to these three issues and that they undermine his decision. I find his decision cannot be sustained and I set it aside.
6. Ms Bhachu and Ms Aboni were agreed that the nature of the error meant the appeal needs to be remitted to the First-tier Tribunal for a fresh hearing. I agree.
7. I order the appeal is to be remitted to the First-tier Tribunal with the following directions.
a. The remitted appeal can be heard by any judge other than Judge Fox.
b. No findings are preserved.
c. The parties can provide further evidence in support of their positions as long as any additional documentary evidence are provided at least 14 days before the next hearing.

Decision
The decision and reasons statement of FtT Judge Fox contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal as per the directions in paragraph 7 above.


Signed Date 12 June 2017

Judge McCarthy
Deputy Judge of the Upper Tribunal