Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46990/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 28 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Mr MD Monwarul Islam
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Ahmed, Counsel, instructed by 12 Bridge Solicitors
For the Respondent: Ms Isherwood, Senior Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Head-Rapson promulgated on 18 November 2015. The appellant is a citizen of Bangladesh. It is his case that he entered the United Kingdom with a valid visa on 22 November 1991 and has not left the United Kingdom since then. That, he says, allows him leave to remain in the United Kingdom pursuant to paragraph 276ADE of the Immigration Rules.
2. The Secretary of State did not accept that nor did she accept that there were any other reasons why his removal would be contrary to his rights pursuant to Article 8 or that there was any other reason why he should be granted leave to remain in the United Kingdom.
3. In the appeal before the First-tier Tribunal the appellant gave evidence and it appears also from paragraph [30] that an additional five individuals gave evidence.
4. Mr Ahmed submits that there are in this case no proper findings as to how long the appellant had resided in the United Kingdom, drawing my attention in particular to paragraphs [40] to [44]. In addition, he submits that at paragraph 70, which is subdivided into three subparagraphs, the judge has in effect either made findings that the appellant had been present in the United Kingdom since 1991 or that there was a failure properly to find how long he had been in the United Kingdom.
5. Ms Isherwood for the Secretary of State has taken me very carefully again to the same paragraphs (40 to 44), submitting that what is set out here is in particular at paragraphs 43 a sufficient finding that the appellant had not lived here continuously for twenty years. She submits also that properly understood what is set out at paragraph 70(ii) is in fact not an inconsistent finding.
6. In response Mr Ahmed submits that in reality the judge’s assessment of the evidence is inadequate in that she fails to refer to the appellant’s evidence and fails properly to refer to the evidence of three of the witnesses.
7. It is difficult to ascertain from the decision what the findings of fact the judge made. It is, to say the least, unfortunate that what the judge appears to have done despite taking over three months to write this determination is little more than reproducing the refusal letter. The decision is unfortunately in many places set out in the terms that the judge has “considered” matters rather than making any findings.
8. I consider that the judge’s approach to the evidence is inadequate. As Mr Ahmed stated, there is no indication of what she conclude about the evidence of three of the witnesses or for that matter what she concluded about the evidence of the appellant. It is implicit that she has accepted that the appellant has lived in the United Kingdom for some period but it is not clear what period she found that to be, when it started or when it finished and it is not clear whether she found that he had actually left the United Kingdom or not. What is said at paragraph 70(iii) is to a significant extent ambiguous.
9. Whilst I accept, as Ms Isherwood submits, that there is a finding that the appellant has not lived here continuously for twenty years and that can be determined from paragraph 43 there is an inadequate treatment of the evidence and I do not consider that the evidence is such given the lack of detail with which the judge has assessed it and the failure to identify what inconsistencies are said to exist and taking these factors together the finding that the appellant has not lived here continuously for twenty years is safe and/or is sustainable, given the ambiguity at [70 (iii)].
10. For these reasons the judge has failed properly to reach findings of fact which are material to the decision. I consider that this is an error of law which does affect the outcome materially and I therefore set aside the decision of Judge Head-Rapson.
11. I consider that given the lack of any real findings of fact in this case the matter should be remitted to the First-tier Tribunal for it to make a proper decision on all relevant issues.

SUMMARY OF CONCLUSIONS

1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the decision to the First-tier for it to be remade on all issues; none of the findings are preserved.

Signed Date: 24 March 2017

Upper Tribunal Judge Rintoul