Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02052/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2017
On 19 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ms Fekrat Aloulabi
(anonymity directiON NOT MADE)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Mr A Othieno, Legal Representative, Birch Tree Law Chambers

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Wilsher promulgated on 13 September 2016. The appellant is a national of Syria, born on 8 June 1939. She applied as long ago as February 2015 for entry clearance to come to the United Kingdom as a visitor to spend time with her daughter and son-in-law who are both well-established in this country. That application was refused on 3 March 2015. We are now more than two years on from that refusal.

2. The reason for the Secretary of State’s refusal was that the Entry Clearance Officer was not satisfied that were the appellant to come to this country she would return to Damascus at the end of the period for which her visit visa was given.

3. The matter proceeded on appeal before First-tier Tribunal Judge Wilsher who dealt solely with an issue of fact, namely whether or not the appellant would return at the conclusion of her visit. The judge said the following in paragraph 7:

“I found the sponsor to be a highly credible witness. She was able to explain the circumstances of her mother in detail. The answers she gave to my questions were convincing. There was no cross-examination. The appellant has visited the UK on several occasions before. Whilst I accept that the situation in Syria in general is dangerous, it is plain that the government has maintained control over Damascus throughout the crises. The appellant has an extensive network of friends and other ties through her son and her grandchildren there which would lead her to have good reasons to return. I also find that she has worked for a medical charity as a pharmacist for many years. In all the circumstances I find that she would be a genuine visitor to the UK and would return at the end of her stay.”

4. With the respect to the judge, that factual issue was not open for review. Under the provisions of section 84 of the Nationality, Immigration and Asylum Act 2002 appeals from decisions of the Secretary of State are limited to what are called residual grounds. In this particular case, it would have been for the appellant to rely on section 84(1)(c) and demonstrate that the decision was incompatible with her rights under the European Convention on Human Rights. This would have required the judge to carry out the delicate balancing exercise of Article 8 considering issues relevant to the existence of private and family life, its interference, and the delicate balance of justification and proportionality. Regrettably none of those matters was considered by the judge.

5. There is self-evidently a material error of law in that the judge’s approach was fundamentally flawed, as Mr Othieno readily concedes.

6. It then falls to me to resolve what should now happen in relation to the remaking of that decision. There has been discussion today as to whether the matter should be retained in the Upper Tribunal and the decision remade or remitted to the First-tier Tribunal for reconsideration.

7. The fundamental flaw in the judge’s approach goes to the very heart of the decision. It needs to be remade in its entirety and this is generally better done by a First-tier Tribunal de novo rather than in this Upper Tribunal. In addition, I would be very reluctant to adopt a course which could work to the injustice of the appellant by denying her the right of a further appeal to the Upper Tribunal in the event of an adverse determination by the First-tier Tribunal.

8. I therefore remit the matter for redetermination by a Judge of the First-tier Tribunal other than Judge Wilsher. I will direct that the matter be heard at Taylor House and that it be given a time estimate of two hours. I further direct that the matter be expedited and listed on the first available date.

9. For the sake of the record, I note that Messrs Fletcher Dervish & Company no longer represent the appellant and in their place are Birch Tree Law Chambers whose address from their fax head is 32 Bedford Row, London WC1R 4HE with an email address for the service of documents of [-].

Notice of Decision

(1) The appeal is allowed on the basis of material error of law and the decision of the First-tier Tribunal promulgated on 13 September 2017 is set aside.
(2) The matter is remitted to the First-tier Tribunal for redetermination by a judge other than First-tier Tribunal Judge Wilsher.
(3) The matter is appropriate for expedition and should be listed at Taylor House on the first available date with a time estimate of 2 hours.
(4) The appellant’s address for service is Birch Tree Law Chambers, 32 Bedford Row, London WC1R 4HE; email: [-].

Signed Mark Hill Date 13 April 2017

Deputy Upper Tribunal Judge Hill QC