Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Appeal numbers: IA / 43770 / 2014
& IA / 43777 / 2014
& IA / 43784 / 2014
& IA / 43789 / 2014

the immigration Acts

Heard at:
Field House

Decision promulgated
On
21 December 2016
On
04 January 2017

Before

Upper Tribunal Judge Gill

Between

Nunes [L]
Fabiana [O]
Gabriela [O]
[S O]
Appellants

And

The Secretary of State for the Home Department
Respondent

Representation:
For the appellants: Mr S Canter, Representative for the Appellants.
For the respondent: Mr S Whitwell, Senior Presenting Officer.

Decision and Directions
1. By an Order dated 14 November 2016, the Court of Appeal allowed the appellants' appeals to the Court of Appeal against a decision of Deputy Upper Tribunal Judge Doyle by which he dismissed their appeals to the Upper Tribunal.
2. The appellants had been granted permission to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal Metzer by which he dismissed their appeals against decisions of the respondent of 5 September 2014 refusing their Article 8 claims. Judge Doyle found that Judge Metzer had materially erred in law and set aside his decision. Judge Doyle proceeded to re-make the decisions on the appellants' appeals. He dismissed their appeals.
3. The Statement of Reasons attached to the Order of the Court of Appeal states that the parties agreed that the Upper Tribunal had erred by failing to consider the third appellant who was under 18 years of age at the date of her application, under para 276ADE(1)(iv) of the Immigration Rules. The parties also considered that the Tribunal would benefit from considering the applications of the third and fourth appellants in light of the recent judgment in MA (Pakistan) & Ors [2016] EWCA Civ 705.
4. Given the terms of the Order of the Court of Appeal, the decision of Judge Doyle cannot stand. This must include his decision to set aside the decision of Judge Metzer. At the hearing before me, Mr Whitwell confirmed that he did not seek to persuade me that Judge Metzer had not materially erred in law. I am satisfied that Judge Metzer did materially err in law for the reasons given by Judge Doyle, which I adopt; see, in particular, para 13 of his decision. I set aside the decision of Judge Metzer.
5. When setting aside a decision of the First-tier Tribunal, the Upper Tribunal will be able to re-make the relevant decision itself in the majority of cases. However, the Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal recognises at para 7.2 that it may not be possible for the Upper Tribunal to proceed to re-make the decision when it is satisfied that:
"(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
6. In my judgment, this case falls within para 7.(b). I am therefore satisfied that a remittal to the First-tier Tribunal is the right course of action.
Notice of Decision

The decision of the Judge of the First-tier Tribunal Metzer involved the making of an error on a point of law such that it falls to be set aside.

These appeals are remitted to the First-tier Tribunal for the decision to be re-made on the merits on all issues by a judge other than Judges of the First-tier Tribunal Metzer and Doyle.

Signed Date: 3 January 2017
Upper Tribunal Judge Gill