Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pA/02550/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 August 2016
On 9 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

ME
(ANONYMITY order made)
Respondent

Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr M Mozham, Solicitor, Burton & Burton Solicitors

DECISION AND REASONS
Anonymity
1. This appeal is subject to an anonymity order made by the First-tier Tribunal. Neither party invited me to rescind the order. I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

Background
2. The Secretary of State for the Home Department (hereafter "the claimant") appeals against a decision of Judge of the First-tier Tribunal Juss ("the Judge"), promulgated on 5 July 2016, allowing the appeal of ME (hereafter "the respondent") against the claimant's decision of 8 March 2016 refusing his protection claim.
3. The respondent is a male national of Burundi born on 7 July 2003 who arrived in the United Kingdom on 20 September 2015 as an unaccompanied child. He was received in the United Kingdom by his uncle and he claimed asylum on 8 October 2015. The respondent's claim was that he had never lived in Burundi. He was born to refugees from Burundi and raised in a refugee camp in Tanzania. He feared that if he returned to Burundi that he would face mistreatment on account of his Hutu ethnicity and, as an unaccompanied stateless child who had lost contact with his family. While the claimant refused the claim on the basis of a change in country conditions since the inter-ethnic conflict began, she did accept that he was a Burundian national of Hutu ethnicity who had spent all his life in a refugee camp in Tanzania. She did not however accept that the respondent was stateless; that he and his family were specifically targeted whilst at the camp or that he had lost contact with his family. Notwithstanding the refusal of the protection claim, the respondent was however granted leave to remain in the United Kingdom on private life grounds pursuant to paragraph 276ADE of the Immigration Rules until 7 September 2018.
The Decision of Judge Juss
4. The respondent's appeal was heard by Judge Juss on 9 June 2016. At the hearing the respondent was 12 years old. As a matter of formality the respondent adopted the contents of his respective witness statements, but he was not cross-examined on account of his age. The Judge then heard evidence from the respondent's uncle. The Judge found the respondent's evidence was coherent and plausible and made reference to the fact that he was an unaccompanied minor [17]. The Judge then observed that other than giving lip service to her duties under section 55 of the Borders Citizenship and Immigration Act 2009, the claimant gave no meaningful consideration to her duties there under 'in the way that the Tribunal has set out in JO (Uganda)' (there is no citation but I assume the Judge intended to refer to JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC)).
5. The Judge then identified further shortcomings in the claimant's consideration and noted the possibility of internal relocation and a failure to apply the benefit of the doubt principle as set out in the Rules in respect of child cases, and noted that no attempt had been made to trace the respondent's parents. Drawing these shortcomings together the Judge concluded that the respondent's decision was flawed as she failed to have regard to that which she should have had regard. Accordingly, the Judge allowed the respondent's appeal solely on the basis that the claimant had failed to fully comply with her statutory duties and therefore her decision was not in accordance with the law and remained outstanding pending its lawful consideration.
The Grounds of Appeal
6. The Judge's decision caused the claimant to apply for permission to appeal to the Upper Tribunal. There was no challenge to the Judge's findings of fact, but the grounds challenged the Judge's approach to the consideration of the issues and the manner in which he disposed of the appeal. Essentially, it was argued that it was not open to the Judge to allow the appeal on the basis that the claimant's decision was not in accordance with the law. It was further contended that the claimant had not acted unlawfully in refusing the claim for international protection.
7. Permission to appeal was granted by Judge of the First-tier Tribunal Judge N Bennett on 21 July 2016 on all grounds.
8. The Upper Tribunal issued directions that there should be a hearing to ascertain whether the First-tier Tribunal had erred in law such that the decision should be set aside and remade. Thus the hearing came before me.
Decision on Error of law
9. At the hearing Mr Jarvis disavowed reliance on ground one. In essence it argued that it was not open to the Judge to allow the appeal on the basis that the decision was 'not in accordance with the law' as this was not an available ground of appeal following the amendments made by section 15 of the Immigration Act 2014, to section 84 of the Nationality, Immigration and Asylum Act 2002. Mr Jarvis rightly accepted that following the guidance given by the Upper Tribunal in Greenwood No. 2 [2015] UKUT 629 (IAC), that the Tribunal had jurisdiction to allow an appeal if it considered that a decision appealed against was not in accordance with the law. Accordingly, it was open to the Judge to find as he did and there is no error of law in his approach in this regard.
10. However, in respect of ground two, I find that the Judge materially erred in allowing the appeal on the limited basis that he did for the following reasons.
11. The Judge considered that the claimant had not taken material matters into account. Whilst the analysis in the refusal letter could have been more detailed, I am satisfied that the claimant took into account her duties contrary to section 55 and considered the best interests of the child. That is evident by her grant of limited leave to the respondent on private life grounds under the Immigration Rules. Whilst the Judge appeared to refer to the Tribunal's decision in JO, in a more recent decision, which the Judge failed to consider, the Tribunal in MK (section 55 - Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC) found that one of the options available to the Tribunal where it finds there has been a breach of section 55 is remittal. MK serves as a reminder however that the decision in AJ (India) v SSHD [2011] EWCA Civ 1191 is authority for the proposition that where the First-tier Tribunal decides that a decision of the Secretary of State is not in accordance with the law on account of a failure to discharge the first of the section 55 duties, the Tribunal is not obliged to remit the case to the Secretary of State for a fresh decision.
12. In this case the Judge has not found a breach of section 55 on the part of the claimant but has rather found the analysis lacking. In any event, even if the Judge was entitled to consider the section 55 duty as having been breached, he should have gone on to consider whether this should result in a remittal to the claimant or whether he could and should consider the matter himself. In failing to consider this, the Judge has erred in law. Further, the Judge had all the information before him and there was no additional evidence or detail to be considered in this case and, it is difficult to see if there was why this could not have been addressed by the Tribunal who had the added benefit of witness statements from the respondent and his uncle, oral evidence and an appeal bundle.
13. Further, whilst the Judge noted other factors such as the claimant's vulnerability and whether the principle of the benefit of the doubt should have been applied, and consideration given to an internal flight alternative, these were matters for the Tribunal to consider in discharging its statutory duty to decide the appeal and did not render the decision unlawful.
14. As to the point about the claimant's duty to attempt to trace the family members of unaccompanied minors, this is something which has been the subject of extensive litigation. However, it does not seem to me that given it was accepted that the respondent had no family in Burundi (the country of return) any allegation that the claimant had failed in her tracing duty could have been materially relevant. Further, and perhaps more importantly, in TN, MA & AA v Secretary of State for the Home Department [2015] UKSC 40, it was pointed out that in determining whether to accept an applicant's account, the Tribunal must act on the evidence before it with no presumption of credibility and the fact that the Secretary of State had failed, if that be the case, to properly discharge her tracing obligation did not affect that. It seems to me that against that background the First-tier Tribunal erred in law in adopting the approach it did.
Disposal
15. Both parties invited the Tribunal to remit the matter to the First-tier Tribunal for the decision to be made in respect of the protection claim which had hitherto not been considered. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:
"... 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." In all the circumstances I am satisfied that it would be appropriate to remit the case to the First-tier Tribunal given the nature and extent of fact finding that needs to be made regarding the protection claim.

Notice of Decision
I set aside the decision of the First-tier Tribunal in its entirety.
The claimant's appeal to the Upper Tribunal is allowed.
The appeal is remitted to the First-tier Tribunal to be heard by a Judge other than Judge Juss.

Signed Dated

Deputy Upper Tribunal Judge Bagral