Tribunal decisions

The decision

Upper Tribunal Appeal Number: IA/36307/2014,
(Immigration and Asylum Chamber) IA/38031/2014, IA/38049/2014

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 20th April 2017 On the 28th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR VIKAS NARENDRABHAI PANCHAL
MRS HINAL VIKAS PANCHAL
MASTER YOMIL VIKAS PANCHAL
(Anonymity Direction not made)
Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms Nizawi (Counsel instructed by Singhanic & Co Solicitors)
For the Respondent: Mr Avery (Home Office Presenting Officer)

DECISION AND REASONS

1. In respect of Mr Vikas Narendrabhai Panchal, his appeal has already been up to the Court of Appeal, and in a decision on the papers dated the 20th February 2017 Lord Justice Beatson set aside the decision of Deputy Upper Tribunal Judge Froom promulgated on the 29th May 2015 in which he found that there was no material error of law in the decision of First-tier Tribunal Judge O’Hagan which had been promulgated on the 7th July 2015, in which Judge O’Hagan had allowed Mr Panchal’s appeal, having found that the Secretary of State’s witness evidence utilised to show that the Appellant had exercised deception by utilising the services of a proxy test taker when taking his English language test, was generic, and that deception had not been established and that Mr Panchal’s appeal should be allowed under the Immigration Rules on Human Rights grounds. Lord Justice Beatson in the Consent Order found that the original decision of First-tier Tribunal Judge O’Hagan did contain a material error of law and set aside that decision and remitted the appeal back to the Upper Tribunal for rehearing.
2. Sadly, although the original decision of the Secretary of State in respect of all three Appellants on Human Rights grounds was made on the 21st July 2014, and makes specific reference to Mr Vikas Panchal, Mrs Hinal Panchal and Yomil Panchal, Mrs Panchal being Mr Panchal’s wife and Yomil being their child, and makes specific findings as to the private life of Mrs Panchal at paragraph 32 and Yomil at paragraph 33 of that decision, upon appeal, the Appellants became split, such that Mr Panchal’s appeal was dealt with separately from that of his wife and child.
3. The appeal of Mrs Panchal and Master Panchal came before First-tier Tribunal Judge Lester on the 4th May 2016 at Taylor House, London, and in a decision promulgated on the 20th May 2016, Judge Lester found that because as of that date Mr Panchal’s appeal had been allowed and upheld by the Upper Tribunal (it not having reached the Court of Appeal by that stage) and that the Appellants to the appeal before her were clearly dependent upon the outcome of Mr Panchal’s appeal, she simply stated at [16] the most sensible outcome was to allow their appeals, but stated at [17] that should the Court of Appeal consider that there is merit in the Secretary of State’s position there will be further argument in which the eventual outcome for Mrs and Master Panchal will be dependent on the lead appeal. She directed that all 3 appeals were to be linked and consolidated.
4. The Respondent has sought to appeal against the decision of First-tier Tribunal Judge Lester in respect of Mrs Panchal and Master Panchal and within the Grounds of Appeal seeks to argue that there was a jurisdictional issue in that the appeal was governed by the old appeal provisions and that any appeal against the decision to remove under Section 10 could only be exercised in country if the subject had made a Human Rights claim under Section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. It was stated that it was the Respondent’s position that whilst Mr Panchal had made such a claim, his wife and child had not and it was only if the Appellants had made a Human Rights claim to the Secretary of State that an appeal right could be exercised in the United Kingdom. It was argued that linking the appeals could not be achieved and that the Upper Tribunal could not be “leapfrogged” bypassing the Upper Tribunal.
5. Permission to appeal was granted in respect of Mrs Panchal and Master Panchal’s appeal by First-tier Tribunal Judge Osbourne on the 10th January 2017, who found that it was arguable that the jurisdiction point had not been resolved and that an arguable error of law had been identified and he allowed permission to appeal on all of the grounds of appeal.
6. In the appeal hearing before me in the Upper Tribunal, I sought clarification from Mr Avery as to the nature of the representations referred to in the Respondent’s decision dated the 21st July 2014 which were said to have been carefully considered when considering the Human Rights of Mr Panchal, Mrs Panchal and Master Yomil Panchal, and as to the basis for the assertion that Mr Panchal had made a Human Rights application but that Mrs Panchal and Master Panchal had not. I asked what the difference between the 3 Appellants’ representations applications, which led to that submission. Mr Avery asked for some time to make enquiries into the nature of the applications made by all 3 Appellants, and having taken instructions on the point, Mr Avery conceded that he had not been able to identify any difference in the positions between Mr Panchal and that of his wife and child and that he was in such circumstances no longer pursuing the jurisdictional issue and no longer seeking to argue that Mrs Panchal and Master Panchal did not have an in-country right of appeal and was no longer seeking to argue that Judge Lester was wrong to proceed on the basis that they did.
7. However, when considering the substance of the decision made by First-tier Tribunal Judge Lester, Ms Nizawi conceded that there was in fact a material error of law in First-tier Tribunal Judge Lester’s decision. She conceded that Mrs Panchal and Master Panchal’s Human Rights positions had been separately considered by the Secretary of State in the decision under appeal dated the 21st July 2014, but when allowing Mrs Panchal and Master Panchal’s appeals, First-tier Tribunal Judge Lester had not considered their positions as separate Appellants separately, and had simply allowed their appeals on the basis that up until that date Mr Panchal’s appeal had been allowed and they were dependent upon that appeal. She further conceded that if First-tier Tribunal Judge Lester’s decision were not set aside, that would lead to a situation whereby following the Court of Appeal’s decision, Mr Panchal’s appeal still had to be considered on Human Rights grounds, whereas his wife and child would have been allowed as his dependents, in circumstances where now Mr Panchal’s appeal had yet to be reconsidered. I therefore do find that the decision of First-tier Tribunal Judge Lester does contain a material error of law and set aside that decision.
8. Both advocates agreed that the case was not ready to proceed before the Upper Tribunal in terms of a reconsideration of all 3 Appellants’ Human Rights, and that the position of all 3 Appellants, being a husband, wife and child, were linked and that given that the decision of First-tier Tribunal Judge Lester should be set aside by myself, that the Human Rights arguments were now broader than initially would otherwise have been the case when Mr Panchal’s appeal alone was remitted back by Lord Justice Beatson from the Court of Appeal to the Upper Tribunal and that the position of all 3 Appellants would now have to be considered afresh.
9. Ms Nizawi indicated that further witness evidence will be required both from Mr Panchal and Mrs Panchal dealing with their Human Rights position and that of their child and asked that in fact the case be remitted back to the First-tier Tribunal, given the case could not proceed today before the Upper Tribunal, in order that the appeals of all 3 Appellants could be considered together before a First-tier Tribunal Judge, and that the Appellants could then retain their full rights of appeal, first to the Upper Tribunal and thereafter to the Court of Appeal, which she argued would not be possible, if the decision was simply made afresh in respect of all 3 Appellants by the Upper Tribunal and that there would now be a considerable amount of fact finding required as the decisions in respect of all 3 Appellants would have to be made afresh, considering the Human Rights aspects affecting all 3 of them.
10. I agree that in light of my decision to set aside the decision of First-tier Tribunal Judge Lester, that in considering the Human Rights appeals in this case, the positions of Mr Panchal and that of his wife and child will all have to be considered and that in such circumstances, the decisions cannot be considered in isolation, and the effect on all 3 family members does have to be considered and their positions considered as a family. The decision is therefore different from that anticipated by Lord Justice Beatson, when the case was remitted back from the Court of Appeal to the Upper Tribunal and that in such circumstances, there will be a significant amount of fact finding required that cannot be done today, given the fact that further witness evidence is required both from Mr Panchal and Mrs Panchal in respect of their Human Rights claims. I therefore do agree that it is sensible for the appeals of all 3 Appellants to be remitted back to the First-tier Tribunal, and for the appeals of all 3 Appellants to be heard together.
11. I therefore remit the appeals of all 3 Appellants back to the First-tier Tribunal for rehearing, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Meah, First-tier Tribunal Judge O’Hagan, or First-tier Tribunal Judge Lester.
Notice of Decision
The decision of First-tier Tribunal Judge Lester does contain a material error of law and is set aside.
The appeals of Mr Panchal, Mrs Panchal and Master Panchal are all remitted back to the First-tier Tribunal Judge for rehearing de novo, the appeals to be heard at the same time, before any full-time First-tier Tribunal Judge other than First-tier Tribunal Judges Meah, O’Hagan or Lester.
I make no order in respect of anonymity, no such order having been sought before me.
Signed

Deputy Upper Tribunal Judge McGinty Dated 25th April 2017