Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04071/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 October 2016
On 1 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MA
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms B Smith, counsel instructed by Kesar & Co Solicitors

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Symes, promulgated on 1 September 2016. Permission to appeal was granted by First-tier Tribunal Judge Pooler on 27 September 2016.

Anonymity
2. A direction has been made previously, and this is maintained.
Background
3. The respondent arrived in the United Kingdom during 1997, aged around 8 (having left Somalia aged 3) accompanied by his mother and sisters. He was initially granted exceptional leave to remain in the United Kingdom and, thereafter, indefinite leave to remain on 20 May 2005. During 2004, the respondent was sentenced to 10 months' detention and training following a conviction for affray. The following year he was convicted of disorderly behaviour and robbery and placed under supervision.
4. The respondent received a four-year sentence following a conviction for attempted robbery during 2005 and he was subsequently served with a notice of intention to make a deportation order in 2007. His appeal against that decision was allowed on Article 8 ECHR grounds on 21 May 2008.
5. On 22 December 2008, the respondent was sentenced to a total of 10 years' imprisonment for aggravated burglary and possessing a prohibited weapon. The sentencing judge said as follows; "You, with two others, pushed yourself into a private address, where children were asleep, at 11 o'clock at night. You were carrying a gun. It later transpired there was ammunition available in a magazine which was on your person. You, or your colleagues, threatened to kill the occupants and it must have been utterly terrifying in its violence and its unexpectedness for everyone that was in that property." After noting the respondent's previous convictions and that the instant offence was committed just three months after he was released from the young offender institution in relation to the attempted robbery matter, the sentencing judge concluded that the respondent was "someone who poses, and will continue to pose for the considerable future, a significant risk of serious harm from the commission of further offences of this nature."
6. The appellant's prison sentence was varied to 14 years by the Court of Appeal on 5 June 2009.
7. The Secretary of State sent the respondent notification of his liability to deportation on 3 August 2012. On 26 September 2013 the deportation order was signed. The appeal against that decision did not proceed as the respondent raised asylum for the first time at the hearing. Thereafter he was interviewed in respect of this claim. In essence, the respondent claimed that he was from a minority clan, that his wife was pregnant, that he would be at risk in Somalia for being westernised and that he could be forcibly recruited to Al Shabaab. The appellant's protection and human rights claims were refused on 18 December 2015 and are the subject of this appeal.
8. The reasons for the refusal of the respondent's claims can be summarised as follows. The Secretary of State certified the protection claim under section 72 of the Nationality, Immigration and Asylum Act 2002.
9. The respondent's claim to be a member of the Elaye minority clan was considered to be unsubstantiated and the Secretary of State was not prepared to advance the benefit of doubt in his favour over this issue. The country guidance authorities on Somalia were considered, however it was not accepted that the respondent would be at risk of persecution or ill-treatment for the reasons he had given.
10. The Secretary of State considered the respondent's credibility to be damaged owing to his delay in seeking asylum until after being notified of a deportation order. The respondent was excluded from a grant of Humanitarian Protection owing to being convicted of a particularly serious crime. The exceptions to deportation did not apply because the respondent was sentenced to at least 4 years' imprisonment and it was not accepted that there were very compelling circumstances such that he should not be deported.
The hearing before the First-tier Tribunal
11. Following the hearing before the First-tier Tribunal, the judge concluded that the respondent could avoid ill-treatment in Somalia by internally relocating and that it would not be unduly harsh to expect him to do so. The judge found that it would be "unduly harsh to a compelling degree" for the respondent's partner and child to accompany him to Somalia or to remain in the United Kingdom without him.
12. The judge made a global finding that the combination of the respondent's absolute assimilation into life in the United Kingdom, the lack of family or clan connections in Somalia, the presence of his entire family in this country and that his British citizen son would lose a father figure reached the high threshold of "particularly compelling circumstances."
The grounds of appeal
13. The grounds of appeal argue, firstly, that the judge materially misdirected himself regarding his findings as to the existence of very compelling circumstances; that the judge failed to consider the issue of unduly harsh with reference to the respondent's criminal history and section 117C of the Nationality, Immigration and Asylum Act 2002, in that it was said that he adopted a family centric analysis. There was said to be nothing in the respondent's case which differed materially from LC (China) v SSHD [2014] EWCA Civ 1310.
14. The second ground related to the respondent's private life, in that it was argued that the judge artificially separated certain factors from his assessment of very significant obstacles to integration and he had failed to indicate anything very compelling.
15. Thirdly, there was said to be a lack of analysis of the recent evidence of a medium risk of offending; that the court imposed an extended licence period and the appellant's further offending while on licence.
16. Permission to appeal was granted on the basis that all grounds were arguable.
17. No Rule 24 response was received on behalf of the respondent, however Ms Smith provided a skeleton argument immediately prior to the error of law hearing which indicated that the Secretary of State's appeal was opposed on all grounds.
The hearing
18. Mr Tufan relied on all grounds. He added that the judge failed to decide the section 72 issue; which he conceded was immaterial given that the protection claim had been dismissed and there was no cross-appeal; however, he submitted it gave an indication of a lack of care by the judge.
19. Mr Tufan emphasised that the judge found at [70] that the respondent would be able to communicate in Somalia using English and at [71] that he could receive funding to avoid destitution in Somalia from his mother and a sister who were taking a holiday in Dubai at the time of his appeal hearing. He argued that the judge's reference to Appendix FM EX.2 was curious and was of no relevance in this case. He acknowledged that at [79] the judge referred to the very compelling test, at [80] he cited SS Nigeria [2013] EWCA Civ 550, at [81] there was reference to the public interest in deterrence but thereafter he went seriously wrong. The respondent was required to show very compelling circumstance, however the judge looked at unduly harshness under 399a of the Rules and thus considered lower threshold. Mr Tufan referred to the recent judgment in AJ (Zimbabwe) [2016] EWCA Civ 1012 and commented that both of the claimants in that case were sentenced to periods significantly less than the respondent and their British children did not prevent their deportation. He argued that the judge held that there were very significant obstacles to integration but had not considered the higher test.
20. Mr Tufan referred to the decision and reasons in Bossade (ss117A-D - interrelationship with Rules) [2015] UKUT 415 (IAC) and remarked that the foreign national offender in that case arrived in the United kingdom at the age of 4, could not speak Lingala but it was concluded that there were no significant obstacles to his reintegration. He argued that even if the judge was right to find that the respondent had integrated in the United Kingdom, he came nowhere near very significant obstacles.
21. Notwithstanding the above-mentioned submission, Mr Tufan submitted that the judge did not consider the respondent's offending in terms of his integration and at [94] he had entirely disregarded the guidance in Farquharson (removal - proof of conduct) [2013] UKUT 00146(IAC) in relation to the offences for which the respondent was suspected but not convicted. At this point, it has to be said that the Secretary of State relied on the categorisation of the respondent as a high harm individual under the auspices of Operation Nexus. According to a police witness statement, the respondent had been warned, cautioned and convicted of a number of offences between the years 2000 and (after many years with no offending) 2014; he had been charged with but not convicted of attempted robbery and possession of class A drugs, he had been a victim of a stabbing, been acquitted of driving offences and a number of offences remained on file.
22. Mr Tufan argued that at [97] the judge failed to take into consideration the seriousness of the respondent's recent offence which involved him swapping car seats with his wife in an attempt to avoid her acquiring a drink-driving conviction. He acknowledged that the judge cited LC China [2014] EWCA Civ 1310, but submitted that the judge had merely paid lip service and did not apply the ratio. Mr Tufan further criticised the judge's departure from the professional view that the respondent posed a medium risk of offending and had considered his rehabilitation to be exceptional.
23. Ms Smith relied on her skeleton argument. She invited me not to deal with additional points made by Mr Tufan which did not form part of the grant of permission. Addressing the first of the grounds, she argued that the judge demonstrated that he was aware of the legal principles at [79] and recognised that the sentence was long. The judge reminded himself of the strong public interest throughout his decision and further reminded himself at [102].
24. The Secretary of State's challenge was in reality a perversity challenge to the judge's finding that the impact of the respondent's deportation would have an unduly harsh impact on his wife and child. Ms Smith relied on JZ (Zambia) [2016] EWCA Civ 116, arguing that the elimination of family life is a relevant factor to be taken into account. The judge was aware that simple separation would not be enough but he put this in context, in that in Somalia owing to the country conditions, the respondent's family will not be able to visit either Somalia or a neighbouring country.
25. While at [86-87] the judge acknowledged that the respondent's circumstances were found not to cross the Article 3 threshold, the circumstances in Somalia would be extremely difficult and there would be no opportunity for any physical contact between the respondent and his child for the foreseeable future.
26. Given the high threshold for perversity, Ms Smith argued that the Secretary of State must establish that the length of the separation of the respondent from his child was an irrelevant factor. Furthermore, the judge did not err in saying the respondent would be excluded from the United Kingdom for 10 years. Nor did he err in stating that the respondent's status was not precarious at the time he met his wife given that the second deportation order had been withdrawn following his asylum claim. This issue was irrelevant because the real issue was the permanent severance of the respondent's relationship with his child. Furthermore, in summing up the judge listed multiple factors, of which his partner was only one part.
27. With regard to the second ground, Ms Smith objected to Mr Tufan's expansion of the grounds to include reference to Farquharson. At [97] the judge had recognised the respondent's "serious misjudgement" and that the offence was a further blemish, however as it was a different type of offence which did not lead to his recall, the Secretary of State's objections were just a difference of opinion and did not identify an error of law. At [98] the judge found that the respondent turned his life around in prison and there was nothing unlawful or erroneous in this.
28. Ms Smith relied on aspects of the judgment in Kamara [2016] EWCA Civ 813 in relation to integration. The issue mentioned in the grounds regarding the respondent's (half) brother who lives in Somalia was dealt with by the judge at [67]. The judge provided extensive reasons for departing from the probation officer's risk assessment at [94-96] of the decision. This was a rare case and the judge was entitled to find there to be compelling circumstances.
29. In reply, Mr Tufan argued that the judge did not apply what he was entrusted to do. He acknowledged that the challenge was in fact based on perversity. There was a very high threshold for unduly harsh and the judge had not applied it as directed by guiding case law. Further, he argued that the test was even higher than this and the judge had focused on the wrong test to start with.
30. With regard to the judge's finding regarding the long-term separation of the appellant from his child, Mr Tufan turned to [14] of AJ (Zimbabwe). He argued that this was not an exceptional circumstance. Furthermore, he said that it is open for the respondent to apply any time for revocation of the deportation order. He submitted that the respondent could keep in contact with his family via modern means of communication. Mr Tufan accepted that little turned on whether or not his situation was precarious at the time he met his wife. He argued that the judge minimised the respondent's recent offending for which he received a 6 month suspended sentence. With regard to the respondent's links to Somalia, he referred me to [23] of the decision where the judge quoted the mother's evidence as to a half-brother who lived in Somalia in relation to whom she had sent funds to release him from a ransom. There was clearly some support available to the respondent. Mr Tufan maintained that the judge failed to give sufficient reasons for going behind the risk assessment when there was a further offence in 2014.
31. Ms Smith then wished to raise a number of other matters, briefly. She submitted a witness statement of the respondent's solicitor in relation to the respondent's immigration status when he met his wife; she emphasised that the respondent had not been drink driving and the judge made references at [101-102] of the decision to the "very compelling" test. Ms Smith asked that were I to find a material error of law, that the judge's factual findings be preserved and that as there was no reason to remit or any new evidence, she invited the Upper Tribunal to remake the decision in the appeal.
32. At the end of the error of law hearing, I indicated that I would reserve my decision and would remake the decision, if an error of law was found, with findings preserved. Mr Tufan indicated that he was happy with that approach.
Decision on error of law
33. On 28 July 2014 the Immigration Act 2014 ("the 2014 Act") came into force. It inserted a new Part 5A into the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). Sections 117C and 117D of the 2002 Act provides:
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where-
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part-
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
"qualifying partner" means a partner who-
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 - see section 33(2A) of that Act).
(2) In this Part, "foreign criminal" means a person-
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who-
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
On 28 July 2014 the Immigration Rules were also amended to read.
Deportation and Article 8
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
34. As indicated above, the respondent was sentenced to in excess of 4 years' imprisonment. Therefore, regardless of whether the judge referred to the Immigration Rules or section 117C of the Nationality, Immigration and Asylum Act 2002, he needed to identify very compelling factors over and above the exceptions to deportation available to those foreign national offenders with lesser sentences. Indeed, this is the basis of the Secretary of State's first ground of appeal, which is expanded upon at [9-14] of the grounds.
35. The judge correctly assessed the respondent's claim against the exceptions and he concluded that Exceptions 1 and 2 applied. His reasons for those findings contain appropriate self-directions and are rich in detail. In view of the fact that the respondent left Somalia at a very young age, the background information in relation to Somalia, the respondent's rehabilitation and the best interests of his minor son, these were findings the judge was entitled to make.
36. The respondent's criticisms of the judge's findings in relation to the Exceptions amount to little more than disagreement. While it is certainly the case that another judge may not have reached the same conclusion as the judge did in this case, it cannot be said that no reasonable judge could have so decided.
37. At [100] the judge set out his considerations as to whether there were very compelling circumstances in this case. He stated as follows;
"I consider that the combination of absolute assimilation into life here, combined with the fact that effectively all the relatives of whom the (respondent) has any memory live close to him here, and that he has a British citizen son who would lose a father figure were the (respondent) to leave the country and a wife who is devoted to him, reaches that high threshold."
38. At [102] the judge accepted, following LC (China) that the "bare separation of child and father for a long time does not itself constitute exceptional circumstances." Yet, owing to "the unusual situation in Somalia," the judge found that any separation between the respondent and his son was likely be permanent.
39. Ms Smith confirmed that it was the likely permanent end to face-to-face contact between the respondent and his son, owing to the impossibility of the child travelling to Somalia and the difficulty of the respondent travelling to a neighbouring country for contact with his wife and child, which were the very compelling circumstances in this case. Indeed, at [86] the judge found;
"I cannot find that he would be in any position to make arrangements to travel to meet them in any third country, his situation in Mogadishu would be too precarious and uncertain for such a conclusion to be made. So the appeal must be assessed on the basis that the (respondent) may very well have no physical contact with his infant son in the future. So, given his mother's circumstances, his son would be raised without a male role model for a very significant period."
40. The Secretary of State's challenge to the judge's conclusion that there were very compelling circumstances is, in itself, a perversity challenge, (R (Iran) [2005] EWCA Civ 982 applied). None of the judge's factual findings were challenged. Furthermore, it could not be said that there was an absence of reasons provided or a lack of appreciation in relation to the strong public interest in the deportation of foreign offenders. I have considered whether the judge's conclusions as to the separation of the respondent from his child can be distinguished from that of any other parent facing separation from their child owing to their serious offending. That is whether it was open to the judge to conclude that the fact that separation might well be permanent was sufficient to render the circumstances truly compelling.
41. Ms Smith relied upon the judgment in Kamara, however the claimant in that case was sentenced to imprisonment of less than 4 years and had no "social, cultural or familial links" in his country of origin. The evidence before the judge in the respondent's case, is that his elder half-brother (they share the same mother) resides in Somalia [23] and the respondent speaks the language of his clan [25], albeit poorly. In addition, the integration of the claimant in Kamara was further adversely affected by the situation with Ebola in Sierra Leone. This judgment does not, therefore, particularly assist the respondent.
42. I now turn to JZ (Zambia), who was sentenced to more than 4 years' detention but succeeded before the Immigration and Asylum Chamber on the basis of his private life. That decision being upheld by the Court of Appeal. There are a number of areas which distinguish this case from that of the respondent and which lead me to conclude that this case also does not assist him. The claimant in JZ was both born outside and had never been to his country of nationality; neither of his parents were of Zambian descent; he had no ties or connections including relatives in Zambia, he was unfamiliar with the culture and social aspects of Zambia; he was unable to speak any language used in Zambia; he was of mixed race; both of his parents had a serious illness in that they were HIV positive and he had not re-offended. None of these issues apply to the respondent.
43. The very compelling circumstances argued on the respondent's behalf included that his son would lose a father figure. In LC (China), a similar argument was made, however the Court of Appeal concluded;
"It follows that neither the fact that the appellant's children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation ?" (my emphasis).
44. In NA (Pakistan) [2016] EWCA Civ 662, Jackson LJ observed
"Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals ?" (my emphasis)
45. I have also been guided by the judgment in AJ (Zimbabwe) where the Court reviewed a long line of authorities with regard to the meaning of exceptional or very compelling circumstances. At [17], Elias LJ said as follows;
"In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary."
46. With regard to the facts of one of the cases before the Court in AJ (Zimbabwe), the court held that the separation of the parent from the child was "an everyday situation" and elsewhere it was said,
"No doubt there will be some emotional damage to the children, but that is not unusual whenever a parent is deported and the child is unable to live with that parent outside the UK. There was nothing special or unusual in the circumstances here ?"
47. I find that the judge did not identify any unusual circumstances in relation to either the respondent's likely long-term separation from his child or his own reintegration in Somalia which elevated his circumstances to the very compelling threshold. All the factors put forward on the respondent's behalf, which were accepted by the judge, went no further than establishing that he met the requirements of Exceptions 1 and 2. That the respondent is a national of Somalia does not suffice to take the case out of the ordinary. I therefore find, with considerable reluctance, that the judge's conclusion that the respondent's circumstances were very compelling was not one which was open to him on the facts.
Remaking
48. I now proceed to remake the decision, leaving the judge's findings intact. The respondent and his wife have a son together, born in 2015. The child is a British citizen. The best interests of this child are a primary consideration and carry great weight. It is obviously in the best interests of this child to be cared for by both of his parents as he is currently. Nonetheless, those interest are capable of being outweighed by the public interest in the respondent's deportation. Owing to the length of sentence, the public interest in the respondent's deportation remains very great.
49. It is not claimed that any member of this nuclear family have any physical or mental health conditions or needs. On the facts found by the judge, the respondent faced up to a 10-year separation from his child, possibly longer. He found that modern means of communication available to the family could not ameliorate the destruction of their life together. Ms Smith particularly relied upon the length of separation, however the authorities which I have referred to above also concerned the separation of parents from their children for many years.
50. At this point, I remind myself about was said in AJ Zimbabwe, in that the respondent needs to provide evidence of special or unusual features to take his case out of the ordinary.
51. The fact that the respondent's wife would be devastated and that the child would lack a male role model owing to the lack of physical contact are, I find, typical consequences following from deportation in any case. The judge remarked that the respondent was now living with his wife, she is employed and has relatives, both hers and those of the respondent to turn to in his absence. Furthermore, while communication by telephone and video calls cannot replicate physical contact, it would enable the respondent to maintain a relationship with his son. Unfortunately, there is no compelling circumstances evinced by the facts of this case, let alone very compelling circumstances.
52. With regard to the respondent's circumstances on returning to Somalia, the judge concluded that there would be very significant obstacles to his reintegration and those findings are not disturbed. I have taken into consideration that the country involved is Somalia, however the judge also found at [90] that the respondent would be able to find work; that he could survive via remittances; that English was widely spoken in Mogadishu [70] but also that he would lack the family or clan connections central to life beyond mere subsistence. Again, I do not find the respondent's likely circumstances in Somalia to amount to very compelling circumstances.
53. Considering the above factors and all the other findings made by the judge cumulatively and having particular regard to section 117C(2), I conclude that there are no very compelling circumstances over and above those described in sections 117C(4) and (5).
54. I therefore dismiss this appeal.
Conclusions
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision to be re-made.
I substitute a decision dismissing the appeal.

Notice of Decision
The appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date:

Upper Tribunal Judge Kamara