Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42626/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 13th March 2017
On 6th April 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

Mohamed Abdelfattah Abdelalim Aly
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Vokes, Counsel instructed by Brys Immigration Consultants
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Egypt born on 8th November 1986. He first arrived in the UK on 5th October 2012 when he was given leave to enter as a spouse until 27th November 2014. On 1st September 2014 the Appellant applied for indefinite leave to remain as the victim of domestic violence. That application was refused for the reasons given in the Respondent’s letter of 3rd October 2014 and his original leave was curtailed to expire on that date. The Appellant appealed and his appeal was heard by First-tier Tribunal Judge Phull (the Judge) sitting at Birmingham on 13th June 2016. She decided to dismiss the appeal for the reasons given in her Decision dated 30th June 2016. The Appellant sought leave to appeal that decision, and on 18th October 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge dismissed the appeal because she found the evidence lacking in credibility and therefore she was not satisfied that the Appellant’s marriage had broken down during the probationary period owing to domestic violence. At the hearing before me, Mr Vokes referred to the grounds of application and argued that the Judge had erred in law in coming to that conclusion as she had omitted to consider relevant evidence which had been before her. The Judge had not considered nor dealt with one of the witness statements of the Appellant in full. This was a material error as the Judge had not appreciated that the Appellant claimed that he had been assaulted by members of his wife’s family and thrown out of the matrimonial home on two occasions. This had been the cause of the breakdown of the marriage. At paragraph 29 of the Decision where the Judge had criticised the evidence of the Appellant she had not taken into account the Appellant’s evidence of two incidents. The Judge had not made any findings in respect of both of these incidents one of which was the main incident leading to the departure from the former matrimonial home of the Appellant. The Judge had not made a finding if either of these incidents had amounted to domestic violence. Further, the Judge had not dealt with the witness evidence of Mohammad Saad referred to at paragraph 4 of the Decision. Again, the Judge had made no findings in respect of this evidence although the witness’s statement had been included in the Bundle before the Judge. As corroborative evidence it was material to the Judge’s decision. In addition, the Judge had made no findings in respect of the Appellant’s allegation of racist abuse, and it was not good enough for the Judge to state at paragraph 30 of the Decision that she had considered all of the evidence in the round.
4. In response, Mr Mills argued that there was no such error of law as the Judge had made findings in respect of all relevant evidence. The key incident which the Appellant relied upon was that which occurred on 16th March 2014 which the Judge dealt with at paragraphs 11 and 14 of the Decision. The Judge also dealt in detail with the medical evidence. The Judge had been aware of all the claims made by the Appellant and had rejected them for the reasons set out in paragraphs 29 to 31 inclusive of the Decision. She had given adequate reasons for her conclusion. The Judge had been entitled to look at all of the evidence and to decide if what had happened amounted to domestic violence.
5. I do find an error of law in the decision of the Judge which I therefore set aside. The Judge did state at paragraph 30 of the Decision that she had considered the evidence in the round, and it is true that the Judge dealt with the medical evidence of the Appellant’s GP. However in her reasons for her decision given at paragraphs 29 to 31 inclusive of the decision the Judge makes no reference to the corroborative evidence of Mohammad Saad, and there is no reference to the Appellant’s evidence of the second incident of violence which led to him leaving the former matrimonial home. I therefore find that the Judge erred in law by not dealing with nor making findings in respect of relevant evidence which went to the core of the Appellant’s case.
6. Having found an error of law in the decision of the Judge, I did not proceed to remake the decision in the appeal. Instead, that decision will be remade in the First-tier Tribunal in accordance with paragraph 7.2(b) of the Practice Statement. That is because a significant extent of judicial fact-finding still has to be carried out. At the re-hearing in the First-tier Tribunal, none of the findings of fact or as to credibility of the Judge will be preserved.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside that decision.

The decision in the appeal will be remade in the First-tier Tribunal.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Date 5th April 2017

Deputy Upper Tribunal Judge Renton