Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005906

First-tier Tribunal No: PA/01650/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

Mr GIBBI CAMARA
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Naviwala of Sunrise solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 4 March 2025

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Zahed, promulgated on 25/10/2024, which dismissed the Appellant’s appeal on article 8 ECHR grounds.

Background
2. The Appellant is a national of Gambia who was born on 03/03/1983. On 21/02/2020 he made an application for asylum. The respondent refused his application on 26/10/2024.

The Judge’s Decision
3. The Appellant appealed to the First-tier Tribunal. At the hearing before the First-tier Tribunal he withdrew his asylum claim. His appeal to the First-tier Tribunal proceeded on article 8 ECHR grounds alone. On 25/10/2024, First-tier Tribunal Judge Zahed (“the Judge”) dismissed the appeal on all grounds.
4. The Appellant lodged grounds of appeal, and, on 09/12/2024, Tribunal Judge Boyes granted permission to appeal. He said
2. The grounds of appeal assert that the Judge erred in numerous respects however particularly in relation to the consideration of the English language certificate.
3. The grounds are arguable for the reasons given in the application. They need no elucidation or explanation from me. The matter referring to the certificate is arguably an error and there is no explanation as to it being received or considered which is easily discernible.
4. Permission is granted on all matters raised however.

The Hearing
5. Before Mr Naviwala could move the grounds of appeal, Ms Everett told us that the appeal is no longer resisted. She agreed that [24] of the Judge’s decision contains a material error of law. She asked as to remit the case to the First-tier Tribunal to be determined of new.
6. For the appellant, Mr Naviwala tried to persuade us to substitute our own decision today allowing the appeal on article 8 ECHR grounds. When pressed, Mr Naviwala had to concede that we do not have sufficient detailed up-to-date evidence today to justly determine this case.
7. After reflection, Mr Naviwala accepted that it is in the appellant’s interest for this case to be remitted to the First-tier Tribunal so that the article 8 ECHR grounds of appeal can be addressed of new.
8. The appellant became distressed. He had clearly placed all his hopes on a final determination of this appeal, in his favour, today. He expressed his distress by throwing himself to the floor and injuring himself.

Analysis
9. This case started as a protection appeal. The application giving rise to this appeal was not an application for leave to remain under appendix FM of the immigration rules. The appellant made an earlier application under the immigration rules which was refused. He appealed that earlier refusal, and his appeal rights were exhausted in 2019.
10. The article 8 ECHR grounds of appeal now before us arise as part of the appellant’s protection appeal. At the hearing before the First-tier Tribunal in August 2024 he withdrew his asylum appeal. All that remains are the article 8 ECHR grounds of appeal.
11. The (now abandoned) asylum claim dominates the reasons for refusal letter dated 27 October 2023. The brief reason for refusing the article 8 Family life aspect of the claim is that the respondent does not accept the appellant’s relationship with his partner is genuine and subsisting.
12. In the decision promulgated on 25 October 2024 the Judge takes the article 8 ECHR claim from 2019 as his starting point and focuses on production of a satisfactory English language test certificate. The Judge finds that the appellant does not produce a satisfactory English language test certificate, so nothing has changed since 2019.
13. It is now accepted that a satisfactory English language test certificate was produced on the day of the appeal, but was not placed before the Judge before his decision was promulgated.
14. At [24] of the decision, the Judge says that the appellant does not meet the English language requirements of the immigration rules, and that the appellant accepts that he has not undertaken an approved English language test. That is a material error of fact.
15. The Judge starts [24] of the decision by saying
I find that this appeal is not dependent on whether the appellant is in a genuine and subsisting relationship with his wife
16. It is there that the Judge falls into material error of law. The respondent’s reason for refusing the article 8 ECHR aspect of the appellant’s case was precisely because the respondent does not accept that the appellant was in a genuine and subsisting relationship with his wife.
17. The material error of law is that the Judge took the wrong starting point. The Judge’s decision has its foundation in reliance on the Devaseelan guidelines. The decision looks back to an application (and appeal) on an entirely different basis in 2019. The first question should have been whether or not the appellant is a party to a genuine and subsisting relationship with his wife.
18. Because the decision is tainted by a material error of law it is set it aside. The only finding made by the Judge which we can preserve is that the appellant and his wife are in a genuine and subsisting relationship ([29] of the decision).
19. Up-to-date evidence ofrticle 8 family life is necessary. Today the appellant wants to rely on DWP benefits letter dated January 2023. It is likely that letter was accompanied by a DWP health care professional assessment which may be of greater relevance. In any event the new decision on article 8 ECHR grounds should be supported by at least up to date witness statements.
20. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal
21. 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.
22. The case should be remitted because a new fact-finding exercise is required. The starting point for the new hearing is the preserved finding that the appellant and his wife are parties to a genuine and subsisting relationship. None of the other findings of fact are to stand.
23. This case is remitted to the First-tier Tribunal sitting at Hatton Cross to be heard before any First-tier Judge other than Judge Zahed. An interpreter will not be required.
Decision
The decision of the First-tier Tribunal errs materially in law.
The Judge’s decision promulgated 25 October 2024 is set aside.
The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 5 March 2025
Deputy Upper Tribunal Judge Doyle