Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01805/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 June 2022
On the 14 July 2022

Before

MR C M G OCKELTON, VICE PRESIDENT

Between

FAIZAL FAZLULLAH

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. P. Nathan, instructed by J McCarthy Solicitors.
For the Respondent: Ms S. Cunha, Senior Home Office Presenting Officer.

DECISION AND REASONS

1. This appeal was listed before me for mention and directions on 21 June 2022. With the consent of the parties the hearing was treated as a substantive hearing of the appeal to the Upper Tribunal.
2. In granting permission to appeal, Judge Campbell said this:
“2. In the grounds, it is contended that the judge erred in deciding the appeal in relation to the appellant’s relocation to the Netherlands, the country of nationality of his partner and children, without engaging with or deciding his case that he would be at real risk on return to Afghanistan.
3 The grounds have merit. The judge correctly identified the nature of the appeal at paragraphs 2, 9 and 32 of the decision and it was not in doubt that the respondent would seek to return the appellant to Afghanistan if his appeal were dismissed, At paragraph 105 of the decision, however, the judge found that “there are no removal directions in place” and went on to assess whether he might relocate to the Netherlands. As the author of the grounds notes, section 84(1) of the 2002 Act (as amended) provides that hypothetical removal from the United Kingdom is available as a ground of appeal, in relation to both the Refugee Convention and the Human Rights Convention and so the absence of “removal directions” is not material.

4 Paragraph 117 of the decision contains the judge’s conclusion that the appellant could continue family life in the Netherlands and the asylum, humanitarian and human rights grounds are formally dismissed at paragraphs 122, 123 and 124 but there appears to be no conclusion reached by the judge regarding removal or return to Afghanistan.”
3. On behalf of the respondent, Ms Cunha did not oppose the appeal against the First-tier Tribunal’s decision being allowed on those grounds. She pointed out that the Secretary of Sate’s own internal Guidance on rights of appeal supports the position taken by the appellant.
4. In my judgment the decision of the First-tier Tribunal involved the making of an error of law. I set aside the decision of Judge Bowler dated 24 November 2020.
5. The circumstances relating to the appellant’s claims against the Secretary of State’s decision. All elements of the appellant’s claim may need determination in the light of current circumstances. The First-tier Tribunal is the appropriate forum for the extensive fact-finding and assessment that is likely to be required.
6. The appeal is remitted to the First-tier Tribunal for redetermination with the following directions:
(i) The appellant may submit fresh information about his case to the Secretary of State within three weeks of today.
(ii) If the appellant does so, the Secretary of State will review it and may issue a further amended decision within three weeks thereafter.
(iii) The appeal is to be heard at the Hatton Cross Hearing Centre, on consultation with the parties’ representatives.

C.M.G. Ockelton

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 22 June 2022