Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/01071/2015
AA/06655/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 20 September 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

O H J A (first appellant)
K S A M (second appellant)
(ANONYMITY DIRECTION made)
Appellant/Respondent

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant/Respondent

Representation:

For OHJA and KSAM: Ms Khan, instructed by Greater Manchester Immigration
For the Secretary of State for the Home Department: Mr Diwyncz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is a cross-appeal concerning a decision of the First-tier Tribunal (Judge Chambers) which was promulgated on 29 January 2016. Granting permission, Judge Gleeson helpfully summarised the position as follows:
The appellants are husband and wife, both are Iraqi citizens, who appealed against the respondent's decision to make a deportation order in respect of the first appellant (the husband) pursuant to Sections 32 and 33 of the UK Borders Act 2007 and to certify the decision pursuant to Section 72(9) of the Nationality, Immigration and Asylum Act 2002 (as amended) and to refuse asylum and humanitarian protection or leave to remain on human rights grounds to the wife and their children.
At the date of the decision, the wife and children benefited from discretionary leave to remain outside the Immigration Rules HC 395 (as amended) which will not expire until the end of September 2017. Theirs was, in effect, an upgrade appeal.
The First-tier Tribunal discharged the Section 72(9) certificate and then dismissed the first appellant's challenge to the decision under Section 32 and upheld the respondent's decision to remove him to Iraq. As regards the wife and children, he also dismissed the humanitarian protection and human rights claims within the Rules, but having regard to Section 55 of the Borders, Citizenship and Immigration Act 2009, and the best interests of the children, the judge allowed the appeals of the wife and children outside the Rules on Article 8 ECHR grounds.
2. Before the Upper Tribunal, Ms Khan of Counsel, who appeared for OHJA and KSAM, conceded that the First-tier Tribunal had no jurisdiction to allow the appeal on Article 8 grounds; the second appellant had appealed under Section 83 of the 2002 Act (as amended) and therefore had a right to appeal on asylum grounds. There was no jurisdiction on such an "upgrade appeal" for the First-tier Tribunal to allow the appeal on human rights grounds.
3. Further, Ms Khan submitted that the judge's findings in respect of the asylum and humanitarian protection appeals of the first appellant were also unsound. The report of the expert witness had been ignored by the judge without giving any reasons whilst no reference had been made to relevant jurisprudence in particular country guidance (see AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC)). Mr Diwyncz, for the Secretary of State, agreed with both submissions made by Ms Khan. In the circumstances, I consider it appropriate to set aside the First-tier Tribunal's decision. I make the following directions for the remaking of the decision in the First-tier Tribunal:
DIRECTIONS
1. The decision of the First-tier Tribunal promulgated on 29 January 2016 is set aside. The findings of the Tribunal save as provided for below are set aside. The findings of the Tribunal at [20-21] in respect of Section 72 of the 2002 Act (as amended) shall stand.
2. The appeal is remitted to the First-tier Tribunal for that Tribunal to remake the decision (not First-tier Tribunal Judge Chambers).
3. Each party shall send to the other party any written evidence upon which that party intends to rely at the next hearing no later than 21 days prior to the date of the hearing.
4. No less than ten working days prior to the next hearing, the representatives of OHJ and KSM shall prepare a new consolidated bundle containing the evidence of both parties (including any new evidence). The representatives shall send a copy of that bundle to the First-tier Tribunal and a copy to the relevant Home Office Presenting Officers' Unit (HOPU).
5. The hearing shall take place in MANCHESTER on a date to be fixed not before 1 November 2016. 4 hours allowed. An Arabic interpreter shall be provided.
Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 21 January 2016 is set aside. I have made directions for the disposal of the appeal (see above).

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10 October 2016

Upper Tribunal Judge Clive Lane

No fee is paid or payable and therefore there can be no fee award.

Signed Date 10 October 2016

Upper Tribunal Judge Clive Lane