Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13480/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th September 2016
On 10th October 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

ENTRY CLEARANCE OFFICER
Appellant
and

Mr Ishmail Kamara
(aNONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr D Coleman, instructed by Lee Valley Solicitors.

DECISION AND REASONS
1. The application for permission to appeal was made by the Entry Clearance Officer but for the purposes of this appeal I shall refer to the parties as they were described before the First-tier Tribunal Judge that is the Entry Clearance Officer as the respondent and Mr Kamara as the appellant.
2. The appellant is a citizen of Sierra Leone born on 11th April 1972 and was refused entry to the United Kingdom on the basis of his convictions which made it undesirable for him to be given a family permit to enter the UK to join his spouse and child under Regulation 19 (1) with reference to paragraph 21(5) of the Immigration (European Economic Area) Regulations 2006 (EEA Regulations). The appellant appealed that decision and his appeal was allowed by First-tier Tribunal Judge Abebrese on 29th October 2015.
3. The Entry Clearance Officer appealed, with permission, against the decision of the First-tier Tribunal Judge on the basis of lack of reasoning. It was advanced that the reasoning was contained in one sentence, finding that the appellant no longer posed a threat to society when 'looking at the offences as a total and also looking at the length of time which has passed'. The offences were noted to be limited to '2003/2006'. In fact the appellant was administratively removed by the SSHD on 5th November 2007.
4. The second ground of appeal was that the First-tier Tribunal Judge had given no reasoning for the assertion that the refusal would breach his rights under the ECHR.
5. The application for permission to appeal was heard by Deputy Upper Tribunal Archer on 23rd May 2016 who was said to have orally upheld the decision of the First-tier Tribunal Judge. Sadly, since that date the Deputy Upper Tribunal Judge has passed away. Mr Coleman at the hearing before me stated that at a previous hearing on 23rd May 2016, Deputy Upper Tribunal Judge Archer had given a decision such that there was no error of law and the application of the Entry Clearance Officer's appeal should be dismissed. Mr Coleman requested that I refer to the record of proceedings. In fact, no reasoning could be discerned from the record of proceedings as to why First-tier Tribunal Judge Archer gave that decision.
6. Mr Whitwell's submission on behalf of the Entry Clearance Officer was that no decision was effective until promulgated.
7. The Upper Tribunal Procedure Rules set out as follows
40.- Decisions
(1) The Upper Tribunal may give a decision orally at a hearing.
(1A) Subject to paragraph (1B), in immigration judicial review proceedings, a decision which disposes of proceedings shall be given at a hearing.
(1B) Paragraph (1A) does not affect the power of the Upper Tribunal to-
(a) strike out a party's case, pursuant to rule 8(1)(b) or 8(2);
(b) consent to withdrawal, pursuant to rule 17;
(c) determine an application for permission to bring judicial review proceedings, pursuant to rule 30; or
(d) make a consent order disposing of proceedings, pursuant to rule 39, without a hearing.
(2) Except where rule 22 (decision in relation to permission to appeal) or rule 22A (special procedure for providing notice of a refusal of permission to appeal in an asylum case) applies, the Upper Tribunal must provide to each party as soon as reasonably practicable after making a decision (other than a decision under Part 7) which finally disposes of all issues in the proceedings or of a preliminary issue dealt with following a direction under rule 5(3)(e) -
(a) a decision notice stating the Upper Tribunal's decision; and
(b) notification of any rights of review or appeal against the decision and the time and manner in which such rights of review or appeal may be exercised.
(3) Subject to rule 14(11) (prevention of disclosure or publication of documents and information), the Upper Tribunal must provide written reasons for its decision with a decision notice provided under paragraph (2)(a) unless-
(a) the decision was made with the consent of the parties; or
(b) the parties have consented to the Upper Tribunal not giving written reasons.
(4) The Upper Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.
8. It is clear that the Upper Tribunal may give a decision orally (Rule 40(1)) but that provision is subject to Rule 40(3) which confirms that the Upper Tribunal must provide written reasons for its decision with a decision notice provided under paragraph 2(a) unless (a) the decision was made with the consent of the parties or (b) the parties have consented to the Upper Tribunal not giving written reasons. Neither party gave consent in this matter, certainly not the Entry Clearance Officer.
9. The Rules also set out provision for setting aside decisions which dispose of proceedings and which I set out below
43.- Setting aside a decision which disposes of proceedings
(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if-
(a) the Upper Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are-
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
10. No decision was promulgated with written reasons by Deputy Upper Tribunal Archer. As indicated there has not been compliance with the Rules and it is not possible to understand why First-tier Tribunal Judge Archer came to the decision he did. I therefore, in reliance on Rule 43, set aside the decision of First-tier Tribunal Judge Archer owing to a procedural irregularity which cannot be cured and because it is in the interests of justice to do so.
11. As I stated at the hearing before me the matter was heard de novo. The decision of Judge Abebrese in respect of the EEA Regulations comprises one line as follows:
'The Tribunal looking at the offences as a total and also looking at the length of time which has passed the Tribunal finds that in the round and on balance that this appellant would not pose a threat to society if he were to be returned to this country'.
12. At paragraph 11 of the decision the Tribunal accepted that the appellant had 25 offences for driving whilst disqualified and driving whilst uninsured [8] and [11]. The judge also noted that the appellant was convicted of offences in relation to possession of class C controlled drugs. The tribunal did not accept the appellant's argument that the drug offence did not relate to him. There were in fact a string of offences dating from 2006. Although reference was made to the offences nowhere did the decision identify that the appellant was administratively removed in 2007 or that he was working, as disclosed by the Entry Clearance Manager as a bus driver during his period in the United Kingdom. The reasoning given by First-tier Tribunal Judge Abebrese in this respect is inadequate. There were no findings in relation to the family.
13. In relation to Article 8 the judge had this to say at [11]
'Alternatively the Tribunal also finds in any event that this appellant having a child in this country and also having already appealed against a refusal of his marriage successfully the Tribunal finds that he does have family in this country and that he does in any event come within Article 8 of the European Convention on Human Rights and a refusal on that basis would on the facts and the evidence be in breach of the Convention'.
14. Mr Whitwell argued that Article 8 had no application in any evidence following Amirteymour as this was under the EEA Regulations. Even if that is the case this is a matter to be canvassed before the First-tier Tribunal Judge. Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC, concerned an in country appeal with no decision on removal, and I note the Tribunal had this to say regarding an appeal on human rights grounds (Section 84(1)(c))
'As we accept that the ground of appeal set out in section 84 (1) (c) is theoretically available in EEA appeals, but is of little assistance to an appellant challenging a decision with respect to documentation. In such a case, the appellant is only entitled to the document if he has established the relevant right of residence under EU law; a successful claim that he cannot be removed pursuant to article 8 could not entitle him to the document, as it could not give rise to a right under EU law.
15. I find that there is an error of law in the decision of First-tier Tribunal Judge Abebrese on the basis that inadequate findings and reasoning have been given both in respect of why the appellant no longer represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (Regulation 21(5) of the EEA Regulations), and in relation to the findings on human rights. Both grounds of challenge are made out by the Entry Clearance Officer. Indeed there is a recitation of the proceedings and evidence in the First-tier Tribunal decision but little by way of actual findings and overall there was an absence of findings such that the decision could be remade.
16. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed

Upper Tribunal Judge Rimington 6th October 2016