Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04340/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 January 2017
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

Fatou Njie Darboe
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Kiai, Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Fenoughty which was promulgated on 4 July 2016. The matter concerns the appellant who is a citizen of Gambia, born on 7 December 1972. She appeals the refusal of an Entry Clearance Officer (made in February 2005) in relation to her claim under the spousal category in paragraph 352A of the Immigration Rules. The matter is factually complex in that the appellant and sponsor were married, then divorced, and subsequently remarried. At the time the application for entry clearance was made, I understand that there were coterminous applications made by the couple's children. I am informed today by counsel for the Home Secretary that each of the children's applications were successful under the prevailing Rules.
2. Be that as it may, the manner in which the First-tier Tribunal Judge dealt with this assessment was on any account less than satisfactory. In particular, the discussion of the best interests of the children as is required by Section 55 of the Borders, Citizenship and Immigration Act 2009 is cursory to say the least and does not comply with the clear guidance prescribed by the Upper Tribunal in Mundeba v Entry Clearance Officer - Nairobi [2013] UKUT 00088 (IAC). It is fairly conceded by Miss Fijiwala, on behalf of the Home Secretary, that there is a deficiency in the decision in relation to this.
3. In the circumstances, the proper course is to set aside the decision of the First-tier Tribunal and remit the matter to be reheard de novo.
4. I noted in passing that I do not consider that the judge's interpretation of Rule 352A(ii) is necessarily correct and the points made in paragraphs 27 and 28 of the decision may properly be revisited. Miss Fijiwala for the Home Secretary quite rightly states this point was not taken in the notice of appeal, but to my mind it is obvious on a reading of the judgment, and as this matter is to be remitted to the First-tier Tribunal for a rehearing, then justice requires that it is looked at afresh. It may be that the disposal under the Rules will be the same, but the narrowness by which the appellant fails to meet the Rules might be a factor in the Article 8 determination. But as there is to be a rehearing, it would be inappropriate for me to comment further.
5. In conclusion, I find a material error of law in the narrow discussion of family life and the failure properly to have regard Section 55. I therefore set aside the decision of the First-tier Tribunal and require the matter to be remitted to the First-tier Tribunal for the decision to be remade by a judge other than Judge Fenoughty.

Notice of Decision
Appeal allowed. Decision of the First-tier Tribunal set aside.
Matter remitted to the First-tier Tribunal for the decision to be remade by a judge other than Judge Fenoughty. No findings of fact preserved.
No anonymity direction is made.

Signed Mark Hill QC Date 6 February 2017

Deputy Upper Tribunal Judge Hill QC