Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02088/2018

THE IMMIGRATION ACTS

Heard at Birmingham
On 31 July 2019
Decision & Reasons Promulgated
On 8 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

Mrs K J
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: The appellant's husband.
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. To preserve the anonymity direction deemed necessary but the First-tier Tribunal, I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Chohan promulgated on 6 November 2018, which dismissed the Appellant's appeal.

Background

3. The Appellant was born on 1 January 1983 and is a national of Iraq. On 25 January 2018 the respondent refused the appellant's protection claim

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Chohan ("the Judge") dismissed the appeal. Grounds of appeal were lodged and on 4 March 2019 Upper Tribunal Judge Eshun granted permission to appeal stating inter alia

The grounds claimed that the Judge failed to consider a large number of documents, identified in the grounds, and that these documents would have made a material difference to the Judge's decision. What difference the documents would have made it is not clear. This will (need) to be addressed at the hearing. It is arguable that the Judge failed to consider and make findings on the oral evidence given by the appellant's husband. It is also arguable that the Judge failed to consider the challenges the appellant's son will face in (Iraq/IKR) because of his autism.

The Hearing

5. The appellant did not come to the hearing because of childcare problems. Her husband attended and wanted to represent the appellant. Mrs Aboni told me that the decision contains a material error of law. In the final sentence of [2] of the decision the Judge records that the appellant's oldest son was born in the UK on 2 November 2011. Although the hearing took place on September 2018, the decision is dated 2 November 2018, the appellant's oldest son's seventh birthday.

6. In the second sentence of [19] of the decision, the Judge says

I note that neither of the children are qualifying children.

That is factually incorrect. On the date the Judge wrote that sentence, the appellant's oldest child celebrated his seventh birthday and completed seven years residence in the UK. On the date the Judge said that neither child was a qualifying child, the oldest child became a qualifying child.

7. Because one of the appellants children is a qualifying child the Judge had to consider whether or not it was reasonable for the child to leave the UK. There is no consideration of the test of reasonableness in the decision. Mrs Aboni asked me to set the decision aside and remit this appeal to the First-tier Tribunal. She told me that the Secretary of State's position is that as permission to appeal has been granted on all grounds the decision should be set aside in its entirety, and a de novo hearing in the First-tier Tribunal is necessary.

8. The decision is tainted by a material error of law. I set it aside.

9. I consider whether or not I can substitute my own decision. There is an inadequacy of fact finding in the First-tier's decision. I find that none of the First-tier Judge's findings of fact can be preserved. I am asked to remit this case the First-tier Tribunal. The material error of law in the decision relates to an inadequacy of fact finding. I cannot substitute my own decision. A further fact-finding exercise is necessary.
Remittal to First-Tier Tribunal
10. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
11. In this case I have determined that the case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
12. I remit the matter to the First-tier Tribunal sitting at Birmingham/Nottingham to be heard before any First-tier Judge other than Judge Chohan.
Decision
13. The decision of the First-tier Tribunal is tainted by material errors of law.
14. I set aside the Judge's decision promulgated on 6 November 2018. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 5 August 2019

Deputy Upper Tribunal Judge Doyle