Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47555/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 10th August 2016
On 11 August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

Mr Joseph Sheriff
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sills (instructed by Protection of Human Rights)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the Secretary of State, with permission, in relation to a Decision and Reasons promulgated by Judge Evans on 8th October 2015.

2. The Appellant is a citizen of Sierra Leone who appealed against a decision of the Respondent taken on the 19th November 2014 to refuse his Human Rights claim.

3. The Human Rights claim was made in response to notification by the Secretary of State that she intended to deport the Appellant.

4. The First-tier Tribunal allowed the appeal. The First-tier Tribunal initially refused permission to appeal which was then granted by an Upper Tribunal Judge on 20th April 2016.

5. However, after permission was granted, around the 21st June 2016, the Upper Tribunal promulgated the reported case of Nkomo (deportation: 2014 rights of appeal) [2016] UKUT 00285 (IAC). That is a decision of the Vice President of the Upper Tribunal and myself. Paragraph 2 of the head note states as follows:-

6. "In consequence, a person against whom a deportation decision was made in the period 10th November 2014 - 5th April 2015 may have no right of appeal if the decisions actually made carry rights of appeal only under the new appeals provisions.

7. The decision in this case fell within that time period. I provided a copy of Nkomo to both representatives and gave Mr Sills time to consider matters as I had indicated that based on Nkomo the First-tier Tribunal's decision was in error because it had no jurisdiction to deal with it.

8. Mr Sills then made submissions that Nkomo was wrongly decided and that there was jurisdiction to deal with the appeal and had been from the outset. He argued that the two Orders referred to in Nkomo should be interpreted in accordance with what was the clear intention of Parliament. He referred to the fact that the Vice President in Nkomo indicated that the meaning of the Orders was clearly not what was intended. He argued that the appeal should be dealt with in accordance with legislative intent rather than what the Order actually said.

9. I indicated that I considered myself bound by a decision of myself and the Vice President made as recently as June this year and on the basis of that case the First-tier Tribunal had no jurisdiction to deal with the appeal and so made a material error of law in dealing with it.

10. The appeal to the Upper Tribunal is allowed and the decision of the First-tier Tribunal set aside in its entirety as the First-tier Tribunal had no jurisdiction to hear the appeal.

11. In redeciding the appeal I dismiss the Appellant's appeal for want of jurisdiction.

12. Mr Sills also made an application for costs against the Secretary of State. I found that application to be wholly without merit given that at the time the Secretary of State took her decision and indeed until the hearing before me no one had appreciated the jurisdictional problem.

13. There was no application for an anonymity order and I see no justification for making one.

Decision

The Secretary of State's appeal to the Upper Tribunal is allowed such that the Appellant's original appeal against the Secretary of State's decision to refuse his Human Rights claim is dismissed

Signed Date 10th August 2016

Upper Tribunal Judge Martin