Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/47755/2014
IA/47766/2014
IA/47767/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 22nd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the Secretary of State for the Home Department
Appellant
and

MV (FIRST respondent)
NMM (SECOND respondent)
KK (THIRD respondent)
(ANONYMITY DIRECTION made)
Respondents

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondents: Ms G Brown of Counsel, instructed by Farani Javid Taylor Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appeals against the decision of Judge Malone of the First-tier Tribunal (the FtT) promulgated on 1st February 2016.
2. The Respondents before the Upper Tribunal were the Appellants before the FtT and I will refer to them as the Claimants.
3. The first and third Claimants are Malaysian citizens, and the second claimant is an Indian citizen. The first and second Claimants are married and are the parents of the third Claimant.
4. On 3rd February 2014 the Secretary of State refused the Claimants' applications for leave to remain in the United Kingdom and the Claimants appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
5. The FtT heard the appeals together on 18th January 2016. The FtT found the Secretary of State's decision to be unlawful on the basis that reasons for the decision had not been provided. I set out below paragraphs 30-32 of the FtT decision;
"30. This Tribunal can no longer remit matters to the Respondent.
31. My conclusion is therefore that the Respondent's decisions in all of these three appeals are not in accordance with the law and are unlawful.
32. I accordingly allow all these appeals and declare that the Appellants' applications remain outstanding and await lawful determination by the Respondent."
6. The Secretary of State then stated at paragraph 34;
"34. All these appeals are allowed on human rights grounds."
7. This prompted the Secretary of State to make an application for permission to appeal. The Secretary of State's application was that the FtT decision should be amended pursuant to rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. It was contended that the FtT had made inconsistent conclusions in the decision, purporting to find the Secretary of State's decision unlawful, but thereafter allowing the appeals on human rights grounds. The Secretary of State stated;
"It is respectfully requested that the determination is amended to show that the appeals have been remitted to the Secretary of State and the applications remain outstanding awaiting a lawful decision."
8. Permission to appeal was granted by Judge Simpson of the FtT in the following terms;
"2. The Respondent's ground is that the judge's decision to allow the appeals is inconsistent with his findings of fact at [28]-[32], in which he indicated that the matters ought to be remitted to the Secretary of State pending a lawful decision.
3. The judge found in [16] that the Respondent's decisions were not in accordance with the law as the Respondent had not provided reasons for her decision. However, as this Tribunal no longer has the power to remit matters to the Respondent it is arguable that the judge acted in error."
9. Following the grant of permission, solicitors acting on behalf of the Claimants lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FtT directed itself appropriately and prepared a comprehensive determination. It was further contended that the FtT considered all the evidence, including an expert report, made findings, and gave valid and adequate reasons for making those findings.
10. Directions were subsequently issued directing that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
11. Mr Whitwell relied upon the grounds contained within the application for permission to appeal, submitting that the FtT decision must be set aside due to the error of law.
12. Ms Brown relied upon the rule 24 response, and the skeleton argument contained within the Claimants' supplementary bundle. I was asked to find no material error of law, and to refuse the application made by the Secretary of State.
13. After hearing oral submissions I announced that the FtT had materially erred in law and the decision must be set aside. I gave my reasons orally and indicated that these would be set out in writing.
14. Ms Brown pointed out that the Secretary of State had not challenged the finding made by the FtT that the decision dated 3rd February 2014 was not in accordance with the law and accordingly the Upper Tribunal had no jurisdiction to find otherwise, and therefore the decision must remain outstanding before the Secretary of State for a lawful decision to be made. I indicated that my provisional view had been that it would be appropriate to remit this appeal back to the FtT having taking into account paragraph 7.2 of the Senior President's Practice Statements. Mr Whitwell indicated the Secretary of State would agree with such a course of action.
15. However, I decided to reserve my decision as to the appropriate disposal of this appeal.
My Findings and Conclusions
16. The reasons for finding that the FtT materially erred in law are as follows.
17. The FtT decided that the Secretary of State's decision dated 3rd February 2014 was unlawful, and therefore declined to make any findings of fact or analyse the evidence, stating in paragraph 29 that it was not appropriate for the FtT to "assume the role of primary fact-finding and determine these appeals". The FtT found, in the same paragraph, "that the matter should be re-visited by the Respondent"(the Secretary of State).
18. The FtT decision that the Secretary of State's decision was unlawful due to lack of reasons, was in my view open to challenge, but the Secretary of State did not mount such a challenge. The Secretary of State instead requested that the FtT decision be amended to show that the decision was not in accordance with the law and therefore remained outstanding before the Secretary of State to make a fresh decision.
19. It is clear that it was not appropriate to rely upon rule 31 of the 2014 Procedure Rules and neither representative before me suggested otherwise.
20. The FtT decision contains conflicting conclusions, for example when paragraphs 31 and 32 are compared with paragraph 34. The result of the FtT decision is that the FtT declined to consider the evidence, made no findings of fact, but then purported to allow the appeal on human rights grounds. The decision therefore clearly cannot stand as an appeal cannot be allowed on human rights grounds, when there have been findings that the decision appealed against was not in accordance with the law, and the FtT does not consider or make findings upon the evidence.
21. For that reason, the decision of the FtT was set aside.
22. I accept the point made by Ms Brown, that the Secretary of State has not challenged the findings made by the FtT that the Secretary of State's decision is not in accordance with the law. Therefore, I accept that I do not have jurisdiction to consider the legality of that decision.
23. My conclusion, therefore, is that having set aside the decision of the FtT, I am constrained to accept that the decision dated 3rd February 2014, which relates to all three Claimants, is not in accordance with the law. Therefore the decision remains outstanding before the Secretary of State for a new decision to be made.
24. It is possible to make a finding that the decision is not in accordance with the law, because both the application for leave to remain, and the Secretary of State's decision, predate the changes in appeal rights brought about by the Immigration Act 2014.
Notice of Decision
The decision of the FtT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that the decision dated 3rd February 2014, which relates to all three Claimants, is not in accordance with the law. The decision therefore remains outstanding before the Secretary of State for a lawful decision to be made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Claimants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings. This direction is made because the third Claimant is a minor.

Signed Date 13th September 2016

Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
FEE AWARD
As the Secretary of State has not challenged the finding made by the FtT that the decision dated 3rd February 2014 is unlawful and prompted these appeals, I find it appropriate to make a full fee award in respect of each of the three appeals.

Signed Date 13th September 2016

Deputy Upper Tribunal Judge M A Hall