Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA006742016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

M. E. (ANONYMITY ORDER MADE)
Appellant

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

______________________________________

ERROR OF LAW DECISION & REASONS
______________________________________

Representation:

For the Appellant: Ms R. Akther, counsel instructed by Malik & Malik solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

1. The Appellant is a national of Afghanistan, born on 1 January 1993. He arrived in the United Kingdom on 27 May 2011 with a Tier 4 General student visa, which he subsequently extended. On 19 May 2015, he applied for a residence card as the family member of an EEA national and on 3 August 2015 he married an EEA national. His application for a residence card was refused on 17 November 2015, following an interview at which the Respondent decided that the marriage was a sham. The Appellant lodged an appeal against this decision on 18 November 2015. On 22 December 2015, he made an asylum claim and on 28 December 2015 his case was placed into the DAC. The essential basis of his asylum claim is that he would be at risk if returned to Afghanistan because of his marriage to a Romanian, non-Muslim woman; that the Taliban had become aware of this and had threatened him via his family in Afghanistan. This application was refused on 21 January 2016 and the Appellant appealed against this decision.

2. Both appeals were listed for hearing at Harmondsworth on 29 February 2016 before Judge of the First tier Tribunal Telford. It is apparent that, whilst the first four paragraphs of the decision reflect the basis of the Appellant's claims, the remainder of the decision from [5] onwards concerns a different Appellant with a different asylum claim. The Judge went on to make findings and allow the appeal of that asylum claimant, in a decision promulgated on 14 April 2016.

3. The Respondent sought permission to appeal on 26 April 2016 on the basis that the First tier Tribunal Judge had materially confused the facts of this Appellant's case with a different Appellant. Permission to appeal was granted by First tier Tribunal Judge Grimmett on 12 May 2016 on the basis that it was arguable that the Judge erred as the Appellant sought protection due to his marriage to a non-Muslim Romanian woman whereas the Judge refers to the Appellant's risk as an interpreter.

Hearing

4. At the hearing before me, both parties accepted that it was clear that the First tier Tribunal Judge had confused the facts of the Appellant's case with another Appellant, with different facts and the appeal needed to be re-heard.

Decision

5. It is clear from the decision that the findings and decision of the First tier Tribunal Judge relate to a different Appellant with different facts, with the effect that this Appellant has not, in fact, had his appeal determined. In these circumstances, I find that the First tier Tribunal Judge erred in law in his misunderstanding of the facts of this Appellant's case and that this is a material error. I remit the appeal to the First tier Tribunal for a hearing de novo.

Deputy Upper Tribunal Judge Chapman

13 June 2016