UI-2024-001419

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The decision



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001419

First-tier Tribunal No: PA/54888/2021

THE IMMIGRATION ACTS

Directions Issued:

On 7th of June 2024

Before

UPPER TRIBUNAL JUDGE PICKUP

Between

FA (Algeria)
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent


DECISION AND DIRECTIONS

1. The First-tier Tribunal (Judge Gibbs) granted the Algerian national appellant permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal (Judge Abebrese) promulgated 20 February 2024 dismissing his appeal against the respondent’s decision of 27 September 2021 to refuse his asylum and human rights claims.
2. By letter dated 10 April 2024, the respondent submitted a Rule 24 Reply stating that the appeal is not opposed and inviting the Upper Tribunal to remit the matter to the First-tier Tribunal.
3. By the directions of the Upper Tribunal (Upper Tribunal Judge S Smith) issued on 15 May 2024, the views of the parties were invited as to the appropriate next steps. Judge Smith recounted the history of this matter, noting that the appeal was original heard and dismissed by the First-tier Tribunal in August 2022 but this decision was set aside with no facts preserved and remitted by the Upper Tribunal’s decision of 29 March 2023 to be remade afresh by the First-tier Tribunal. Judge Smith was concerned with the length of time that has elapsed and referred to the overriding duty to deal with cases fairly and justly, whilst recognising that ordinarily the practice statement would require an appeal to be remitted to the First-tier Tribunal in the event that full findings of fact are required. Judge Smith directed the parties to respond within 14 days of the issue of his directions.
4. The Upper Tribunal has now received the appellant’s legal representatives’ letter of 23 May 2024, in which the Upper Tribunal is requested to remit the appeal to the First-tier Tribunal on the basis that full facts need to be determined. They rely on paragraph 7(2)(b) of the Practice Statement and Begum [2023] UKUT 00046 (IAC), stating: “We submit that it is clear that the appropriate course of action is a remittal of the appeal for a re-hearing de novo before the First Tier Tribunal. We respectfully invite the Tribunal to find that there is an error of law on the papers and to remit the appeal to the First-Tier Tribunal for further hearing.”
5. In light of the submissions and taking into account the concerns as to delay referenced by Judge S Smith, the Upper Tribunal concludes that this matter should be remitted to the First-tier Tribunal, on the basis that there has been no findings of fact and that none have been preserved from the previous decision. In ordinary circumstances, it is not for the Upper Tribunal to be primary finder of facts. This approach is consistent with paragraph 7(2) of the Practice Statement.

NOTICE OF DECISION
The appellant’s appeal to the Upper Tribunal is allowed.
The decision of the First-tier Tribunal is set aside with no findings preserved.
The remaking of the decision in the appeal is remitted to the First-tier Tribunal at Taylor House, to be remade afresh and heard by any judge other than Judges Lawrence, Gibbs and Aberbrese.

DIRECTIONS
If an interpreter is required for the Algerian appellant, the First-tier Tribunal must be advised of that fact within 14 days of the issue of this decision and these directions.


DMW Pickup

Judge of the Upper Tribunal
Immigration and Asylum Chamber


29 May 2024