Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01602/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 27 January 2017
On 17 February 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE GRUBB

Between

Awat [S]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O James, instructed by Barnes Harrild & Dyer, Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Iran who was born on 1 January 1989. He arrived in the United Kingdom on 6 July 2006 and claimed asylum the next day. That claim was refused on 24 August 2006 and his appeal against that decision was dismissed on 13 October 2006. Further representations were made on 1 July 2010 but were rejected on 26 July 2010. Again, further submissions were made on 9 February 2011 and again they were rejected on 8 March 2011.
2. On 8 April 2015, the appellant made further submissions in which he claimed to be at risk on return to Iran due to his Kurdish ethnicity, because he had illegally exited Iran and because he would be a returning failed asylum seeker. On 27 January 2016, the Secretary of State rejected those submissions and refused the appellant's international protection claim.
3. The appellant appealed to the First-tier Tribunal. At that hearing, in addition to the matters previously relied upon, the appellant also relied upon his sur place political activities in the UK. During the course of the hearing, the Presenting Officer sought an adjournment in order that the files relating to his earlier applications could be located and obtained as they were relevant to the current proceedings. The judge agreed that they were relevant but instead of granting an adjournment, he allowed the appellant's appeal in order to give the Secretary of State an opportunity to locate the files.
4. The appellant appealed against that decision on the basis that the judge had erred in law by failing to determine the substance of the appellant's appeal under the Refugee Convention.
5. On 20 September 2016, the First-tier Tribunal (DJ McCarthy) granted the appellant permission to appeal.
6. On 7 October 2016, the Secretary of State filed a rule 24 notice in which she accepted that the judge had erred in law in allowing the appellant's appeal in order for the respondent to locate the relevant files and she invited the Tribunal to direct a fresh oral hearing.
7. In "allowing" the appeal the judge reasoned as follows:

"8. That said, the Tribunal has come to the conclusion that the missing files in this case are of clear relevance. The Appellant's then Asylum claim in 2006 was dismissed both before this Tribunal and before the High Court. That must be of relevance to the present claim, irrespective of intervening political activity by the Appellant within the UK.

9. Under all the circumstances of this case the Tribunal proposes to give the Respondent an opportunity to relocate the missing files. If found, it would seem appropriate that an Addendum Refusal Decision should be issued to incorporate the factual basis and reasoning behind the 2006 Refusal Decisions. Of course, that is entirely a matter for the Respondent.

10. The Tribunal understands that none of this is the fault of the Appellant and indeed it is quite squarely the fault of the Respondent that missing information was not available for this Hearing.
11. Under these circumstances, the Tribunal proposes to allow this appeal but only to the extent that is indicated at paragraph 9 above."
8. It has recently been pointed out by the Upper Tribunal in Katsonga ("Slip Rule"; FTT's general powers) [2016] UKUT 00228 (IAC) that, as a result of amendment by the Immigration Act 2014, s.86(3) of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002") has been amended so as to delete the FtT's obligation to allow an appeal if it is satisfied that one of the grounds in s.84 of the NIA Act 2002 is established. Further, the repeal of s.86(5) has also removed the FtT's obligation to dismiss the appeal where the appeal is not allowed under s.86(3) because the grounds were not made out. The consequent 'vacuum' that results was noted by the Upper Tribunal (see [7]).
9. Nevertheless, the NIA Act 2002 still requires the FtT to determine "any matter raised as a ground of appeal" (see s.86(2)(a)) or in a statement in response to a s.120 notice (s.86(2)) subject to the respondent's consent if it is a "new matter" (s.86(5)). That is the focus of any appeal before the FtT.
10. The grounds of appeal are set out in s.84 of the NIA Act 2002 (as amended by the Immigration Act 2014). Section 84(1)-(3) sets out the grounds of appeal in relation to the three appealable decisions in s.82, namely the refusal of an international protection claim, the refusal of a human rights claim and the revocation of protection status. For present purposes, it suffices to set out s.84(1) which applies to the refusal of a protection claim which was the decision against which the appellant appealed. That provides three grounds of appeal:
"(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention)."
11. Those grounds are more limited than those in s.84 prior to its amendment. In particular, the ground in the former s.84(1)(e), that the decision was "otherwise not in accordance with the law", no longer exists.
12. The appellant's grounds of appeal to the FtT relied upon both the Refugee Convention and the ECHR. Consequently, the relevant grounds of appeal which the judge was required to consider were those set out in s.84(1)(a) and (c).
13. Before us, neither representative sought to uphold the judge's decision to allow the appellant's appeal. We agree that the judge erred in law in doing so in order to allow the respondent to locate the appellant's missing files. That, if anything, only warranted an adjournment of the hearing. Leaving aside the apparent difficulty of the FtT ever "allowing" an appeal after the amendments to s.86, the judge's determination was clearly intended to be a decision disposing of the appeal before him. The judge failed to determine whether either or both of the grounds which were relied upon were established and, in doing so, he erred in law.
Decision
14. For the above reasons, the First-tier Tribunal's decision involved the making of an error of law and cannot stand. We set it aside.
15. The proper disposal of this appeal is to remit it to the First-tier Tribunal to hear and determine the appellant's appeal on the basis of the grounds of appeal raised.

Signed

A Grubb
Judge of the Upper Tribunal