Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11065/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 December 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN
UPPER TRIBUNAL JUDGE CRAIG

Between

MAHBUB SALAH IBRAHIM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Laughton, Counsel, instructed by Birnberg Peirce & Partners
For the Respondent: Mr J Parkinson, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, who was born on 24 October 1994, is a national of Somalia. While still a minor, he applied for entry clearance to allow him to join his mother. This application was refused by the respondent and subsequently, in a determination promulgated on 17 April 2013 following a hearing at Taylor House on 5 April 2013, his appeal was dismissed by First-tier Tribunal Judge Molloy.
2. The appellant now appeals against this decision, permission having been granted by First-tier Tribunal Judge Parkes on 5 July 2013. When setting out his reasons for granting permission, Judge Parkes summarised the facts and issues within this appeal as follows:
“…
2. The appellant applied for entry clearance to the UK to settle with his mother who is a British citizen under paragraph 297 of the Immigration Rules. The application was refused and the appeal dismissed. In short, the judge was not satisfied that at the date of the refusal notice the appellant was a minor and was not satisfied that the appellant’s father had died.
3. The Grounds of Appeal raise a number of issues, that the judge erred in his approach to the evidence relating to the appellant’s father’s death, his treatment of the appellant’s date of birth and in his approach to paragraph 297 and Article 8. It is clear that there are significant differences between the judge and Counsel for the appellant about the evidence that was received…”.
3. Before us, on behalf of the respondent, Mr Parkinson stated as follows:
“The Secretary of State does not understand precisely what the findings of Judge Molloy amount to, given the somewhat archaic phraseology used, and would consider the lack of clear findings amounts to a clear error of law, such that the determination cannot be sustained.”
4. We agree, and we also find, as asserted within the very carefully prepared written submissions, settled by Ms Laughton and put before the Tribunal on the appellant’s behalf, that Judge Molloy failed to assess the reliability of the documents relating to the claimed death of the appellant’s father in the round, together with all the other evidence which was before him, (rather than in isolation), as he should have done following the decision in Tanveer Ahmed [2002] UKIAT 00439.
5. We agree with both representatives that these errors were sufficiently serious that the determination must be set aside and the decision re-made.
6. Having had regard to paragraph 7 of the President’s Practice Statements to the Immigration and Asylum Chamber of the Upper Tribunal, we consider that the effect of the errors contained within the determination as identified above were such that the appellant was effectively deprived of a fair hearing. We consider further that the nature and extent of the judicial fact-finding which will now be necessary in order for this decision to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the case to the First-tier Tribunal, as requested on behalf of the appellant and we shall so order. We accordingly make this decision below, and shall also give directions for trial.
7. At paragraph 16 of his determination, Judge Molloy noted that the issue of maintenance had been “unequivocally conceded” by the respondent, and accordingly this concession shall stand. Also, Judge Molloy’s finding at paragraph 120 that the accommodation requirements under paragraph 297 are satisfied to the requisite standard of proof is unaffected by the errors of law identified above and should also stand.
Decision
We set aside the determination of First-tier Tribunal Judge Molloy as containing a material error of law, and direct that this appeal be remitted for a re-hearing by the First-tier Tribunal, sitting at Taylor House, to be put before any judge other than First-tier Tribunal Judge Molloy.

Signed: Date: 17 December 2013

Upper Tribunal Judge Craig