Tribunal decisions

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: IA/29375/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 3 February 2017
On 6 February 2017
Prepared on 3 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

J. O.
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cleghorn, Counsel instructed by Reiss Edwards Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Bangladesh who entered the UK as a student on 4 January 2010. Athough his leave to remain was extended from time to time, on 27 August 2014 an extension was refused and a decision was made to remove him because the Respondent concluded that an earlier extension had been obtained in 2012 through deception. An appeal against that decision was dismissed by the Tribunal on 10 November 2014.
2. On 8 December 2014 the Appellant made a further application, for the grant of leave. That too was refused on 13 August 2015. The Appellant's appeal against this was then heard and dismissed in a decision promulgated on 1 August 2016 by First Tier Tribunal Judge MR Oliver.
3. The Appellant was granted permission to appeal that decision on 2 December 2016 by Designated Judge Macdonald on the basis it was arguable the Judge's approach to the Appellant's relationship with his children was flawed.
4. Thus the matter comes before me.

Error of Law?
5. Although the appeal before the Judge was pursued as an appeal against the decision under the Immigration Rules, on the basis it was not in accordance with the law, and treated as such by the Judge in his decision it is accepted before me by both parties that this was in truth only ever an Article 8 appeal.
6. It is accepted before me that the Appellant's partner is a qualifying partner, and that his two children are qualifying children, as defined in section 117D of the 2002 Act. It is also accepted before me that the decision makes no reference to this, or to section 117 itself, or indeed to any of the relevant jurisprudence that offers guidance to the proper approach to be taken to such an appeal. Indeed the sole reference to the section 55 duty is to be found in the penultimate sentence of the decision.
7. In the circumstances both parties are agreed before me that the decision fails to demonstrate that the Judge undertook a proper assessment of the best interests of the two children, or, that he then went on to undertake an adequate proportionality balancing exercise which took into account the particular circumstances of the Appellant's wife and children; Kaur (children's best interests/ public interest interface) [2017] UKUT 14.
8. I also note the Respondent's cross-complaint that the Judge's approach to the decision of the Tribunal in November 2014 failed to comply with the guidance to be found in the Court of Appeal's decision in Shehzad and Chowdhury [2016] EWCA Civ 615. An earlier decision of the Tribunal rejected the Appellant's bald denial of dishonesty, and there is a failure by the Judge to explain adequately why he departed from that finding, or even to consider whether such a step was properly open to him to take. There is plainly merit in that, and I am not satisfied that the Judge's departure from the earlier findings of the Tribunal to the effect that the Appellant had failed to provide an innocent explanation for the conclusion by ETS that he had not sat the language test he had represented himself as having undertaken, was open to him, or that it led to a finding that was safe.
9. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, as the Respondent accepts is the proper course. In the circumstances of the appeal I am satisfied that this is the correct approach, and that there is indeed no alternative to the appeal being reheard de novo, as indeed I note the Appellant requests.
10. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. None of the findings of fact set out in the decision are preserved. The appeal is not to be listed before Judge Oliver.
ii) If a Bengali interpreter is required for the hearing of the appeal then the Appellant must notify the Tribunal immediately.
iii) Each party must serve upon the other and file with the Tribunal by 5pm on 20 February 2017 any further evidence they may seek to rely upon.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 28 February 2017.

Decision
11. The decision promulgated on 1 August 2016 did involve the making of an error of law sufficient to require it to be set aside and the appeal to be reheard. Accordingly the decision upon the appeal is set aside and the appeal is remitted to the First Tier Tribunal with the following directions, made with the agreement of the parties;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. None of the findings of fact set out in the decision are preserved. The appeal is not to be listed before Judge Oliver.
ii) If a Bengali interpreter is required for the hearing of the appeal then the Appellant must notify the Tribunal immediately.
iii) Each party must serve upon the other and file with the Tribunal by 5pm on 20 February 2017 any further evidence they may seek to rely upon.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 28 February 2017.

Deputy Judge of the Upper Tribunal JM Holmes
Dated 3 February 2017