Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number UI-2021-001041
(PA/00613/2020)

THE IMMIGRATION ACTS

Heard at George House, Edinburgh
Decision & Reasons Promulgated
On the 13 April 2022
On the 16 June 2022

Before

UT JUDGE MACLEMAN

Between

N P N
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Fyffe, of McGlashan MacKay, Solicitors
For the Respondent: Mr Diwyncz, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. FtT Judge Buchanan dismissed the appellant’s appeal by a decision promulgated on 18 October 2021.
2. By an application dated 1 November 2021, the appellant sought permission to appeal to the UT.
3. The first and key point in the grounds is that the Judge erred by basing his decision on the appellant and his wife or partner, KN, not having married in the UK, when that had been accepted by the respondent and by a previous Judge in deciding an appeal brought by KN.
4. On 24 November 2021 FtT Judge Grant granted permission, on the view that arguably the Judge:
… erred in law in finding that the appellant and his wife were not married in the UK when the marriage has been accepted by the respondent as having taken place.
It is arguable that the Judge may have erred in law by engaging in procedural unfairness by making findings on an issue not before the Tribunal (the marriage having taken place or not) without drawing his concerns to [attention of] the parties and seeking their submissions or further evidence on the same.
5. KN failed in 2017 in a claim on the same basis, that their marriage within the same gotra (a clan of presumed relatives) breaks a Hindu taboo and placed them at risk of “honour violence” in Nepal.
6. At [24] of his decision the Judge acknowledged that the marriage had been accepted by the respondent, but noted that there was no evidence that the ceremony in a temple in London was conducted by an authorised person, and that although there had been a certificate before the previous Judge, there was no certificate before him. He then proceeded to an extended discussion of the issue. (There is also said to have been a subsequent divorce in Nepal, although again without documentary evidence.)
7. There are numerous questions, factual and legal, around the claim based on the marriage. However, Mr Diwnycz acknowledged that the marriage was not contested in the respondent’s decision, and was accepted in the decision in 2017. The marriage would be in issue in further proceedings, but he conceded that this was an instance where the Judge erred by reaching his decision without putting parties on notice of the concerns he had after considering the evidence.
8. Further hearing will not proceed on any concession about the marriage. There was also a claim based on money-lending. Although the grounds and submissions did not go significantly to that aspect, I was not asked to preserve any findings. It is undesirable to restrict the further consideration of the case.
9. Under section 12 of the 2007 Act, and under Practice Statement 7.2, the decision of the FtT is set aside. It stands only as a record of what was said. The case is remitted to the FtT for a fresh hearing, not before Judge Buchanan.
10. The FtT made an anonymity direction. The matter was not addressed in the UT. Anonymity is maintained herein.

H Macleman

14 April 2022
UT Judge Macleman

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.