PA/03125/2015

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03125/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision and Reasons Promulgated
On 3 October 2016
On 4 October 2016


Before

UPPER TRIBUNAL JUDGE GLEESON


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

N S K
[ANONYMITY ORDER MADE]
Respondent

DECISION AND DIRECTIONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the claimant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant's appeal on Article 8 ECHR grounds against her decision to refuse his protection claim.
2. Permission to appeal was granted by First-tier Tribunal Judge Grimmett who considered it arguable that the First-tier Tribunal's approach to Article 8 ECHR was erroneous as there was no consideration of the claimant's position under the Immigration Rules HC395 (as amended) or whether there were compelling compassionate circumstances for which the Secretary of State should have granted leave outside the Rules.
3. At a hearing on 23 May 2016 before Deputy Upper Tribunal Judge Archer there was common ground between Ms Aruna for the Secretary of State, and Mr S Mardner who represented the claimant, that the First-tier Tribunal had indeed erred as alleged, in that the two stage approach set out at [31]-[33] and [51]-[55] of The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 had not been applied.
4. Deputy Upper Tribunal Judge Archer was unable to complete the decision. By a transfer order dated 3 October 2016, the appeal has been transferred to me.
5. Given the agreement between the parties at the hearing that there is an error of law in the First-tier Tribunal's decision, I consider that the proper course is for the decision to be set aside and this appeal to be remitted to the First-tier Tribunal for hearing afresh with no findings of fact or credibility preserved.

DECISION

6. My decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
I set aside the previous decision. The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed.


Date: 4 October 2016 Signed: Judith A J C Gleeson Upper Tribunal Judge Gleeson