Upper Tribunal (Immigration and asylum chamber), 2017-06-21, PA/00340/2016 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 21 June 2017 |
| Published date | 17 August 2017 |
| Hearing Date | 09 June 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/00340/2016 & Ors. |
Appeal Number: PA003402016
PA005662016
PA005672016
PA005682016
PA005692016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00340/2016
PA/00566/2016
PA/00567/2016
PA/00568/2016
PA/00569/2016
THE IMMIGRATION ACTS
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Heard at North Shields |
Decision & Reasons Promulgated |
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On 9 June 2017 |
On 21 June 2017 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
H M A
A E S S
M E S
K E S S
S E S S
(ANONYMITY DIRECTION MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms L Brakaj of Iris Law Firm
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellants because four of the appellants are children.
2. These are cross appeals. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal. These are appeals by all parties against a decision of First-tier Tribunal Judge Moran promulgated on 29 December 2016.
Background
3. The first appellant is the mother of the remaining appellants. All of the appellants are Libyan nationals. On 30 December 2015, the Secretary of State refused the Appellants’ protection claims.
The Judge’s Decision
4. The Appellants appealed to the First-tier Tribunal. First-tier Tribunal Judge Moran (“the Judge”) allowed the appeals against the Respondent’s decision on article 8 ECHR Grounds, finding that the appellants met the requirements of paragraph 276ADE(vi) of the rules, but dismissed the appeals on all other grounds. Grounds of appeal were lodged by both the appellants and the respondent and, on 20 February 2017, Upper Tribunal Judge Kebede gave permission to appeal stating inter alia
“2. There is arguable merit in the assertion in the appellant’s grounds that the Judge arguably erred in his assessment of risk in light of the positive findings made. Arguably, furthermore, the context in which the Judge considered risks to family members differed from the circumstances in this case, but it was found that the father of the family was at risk and where the respondent would be considering the return of the family together as a unit.
3. It seems to me that the respondent’s grounds in relation to the Judge’s findings on “very significant obstacles” are inextricably linked to the assessment of the appellant’s grounds of challenge and therefore, in granting permission to the appellant’s I also grant permission to the respondent. There is, in any event, arguable merit in the assertion in the grounds that the Judge has arguably treated paragraph 276ADE(vi) as a lower threshold article 15(c) test.”
The Hearing
5. (a) Mr Whitwell moved the respondent’s grounds of appeal. He told me that he would be relying on SSHD v Kamara [2016] EWCA Civ 813 and referring to the respondent’s own immigration directorate instructions on the interpretation of appendix FM of the immigration rules.
(b) Mr Whitwell told me that the Judge took an incorrect approach to paragraph 276 ADE(vi) of the immigration rules. He reminded me that the second, third, fourth and fifth appellants are all children, so that subparagraph (vi) of paragraph 276 ADE(1) cannot apply to them. Their cases should have been considered under 276 ADE(1) (iv). He told me that that, in itself, is undoubtedly an error of law.
(c) He took me to [40] of the decision, where the Judge makes it clear that no submissions were made in relation to article 8 ECHR. He told me that the Judge embarked on his own assessment of article 8, which was not a ground of appeal relied on by the appellant’s. He told me that the Judge’s reasoning is flawed and that the Judge has not considered the relevant factors which make up article 8 private life. He told me that what the Judge considered at [40] of the decision mitigates against a breach of article 8 private life and referred me to SSHD v Kamara at paragraph 14.
(d) Mr Whitwell then took me to [41] of the decision, where, he told me, the Judge specifically records that he has not considered article 8 outside the rules, but argued that the Judge’s finding at [43] appears to be a finding that the appellants will succeed on article 8 ECHR grounds outside the rules even though the five step test set out in Razgar has not been followed by the Judge and no consideration is given to section 117B of the 2002 Act.
(e) Mr Whitwell told me that these are material errors of law and urged me to set the decision aside.
6. (a) For the appellants, Ms Brakaj told me that the decision does not contain errors in relation to the article 8 ECHR assessment. She told me that [41] contains a finding which corrects any potential error in the Judge’s treatment of paragraph 276ADE(1) of the immigration rules. She told with is at [40] the Judge took account of all relevant factors in finding that article 8 private life exists, and that as the Judge finds that there are insurmountable obstacles to the first appellant returning to Libya, and it is a matter of concession that the father of the children (the husband of the first appellant) is present in the UK, then the four minor appellants cannot be expected to return to Libya alone. She told me that the factors considered by the Judge at [40] are entirely consistent with what is said at paragraph 14 of SSHD v Kamara
(b) Ms Brakaj reminded me that at [20] the Judge sets out the five stage test of Razgar, and told me that the Judge followed those steps. She urged me to dismiss the respondent’s appeal and allow the decision to stand insofar as it relates to article 8 ECHR grounds of appeal.
7. (a) Ms Brakaj opposed the respondent’s appeal and moved the appellant’s grounds of appeal. She told me that the Judge finds as a fact that the first appellant’s husband would be at risk on return to Libya, and that the Judge found the appellants to be credible. Having found the appellant’s to be credible, (Ms Brakaj argued that) the Judge did not give adequate consideration to the effect of return of this family as a unit. She told me that that the Judge had incorrectly interpreted the evidence of the confiscation of each appellants’ passport, and that although the Judge finds at [33] the first appellant’s husband would be perceived to have links to the former Gaddafi regime, the Judge has not adequately considered the impact of that finding on the profile of each of the appellants.
(b) Ms Brakaj took me to [34] where the Judge sets out his findings of fact. She told me that the fact finding made by the Judge is inadequate. She told me that there were matters put in evidence from which the Judge has not made findings of fact despite finding the appellant’s credible. She told me that the Judge’s findings at [40] are an indication that there is a risk to each of the appellants on return to Libya and that the finding that the risk exists is not reflected in the conclusion that none of the appellants are entitled to refugee status.
(c) Ms Brakaj took me to [38] and [39] of the decision and told me that there the Judge makes generic findings in relation to article 15(c) of the Qualification Directive, but does not consider the individual facts and circumstances of each appellant. She told me that the lack of focused findings demonstrates that the Judge’s decision in relation to the refugee Convention and article 15 (c) are flawed.
8. Mr Whitwell relied on the rule 24 notice and told me that between [37] and [39] the Judge makes adequate findings of fact. He told me that there is no criticism of the guidance in law taken by the Judge and that the Judge reach conclusions which were well within the range of reasonable conclusions available to the Judge. He took me to the terms of the appellant’s witness statement and argued that some of the matters which are put to me now are not matters which were argued before the First-tier tribunal. He urged me to allow the decision in relation to the refugee Convention and article 15(c) to stand.
Analysis
9. Between [1] and [3] the Judge sets out the background to these cases. Between [4] and [7] he summarises the respondent’s reasons for refusal of the appellant’s protection claims. Between [8] and [10] he summarises the grounds of appeal. The first sentence of [10] of the decision records that the Judge was told that no submissions would be made on article 8 ECHR grounds.
10. Between [11] and [22] the Judge sets out the law. Between [23] and [30] the Judge summarises the evidence. The Judge’s findings of fact are contained at [33] and [34] of the decision only.
11. Despite the fact that the Judge records at [10] of the decision that none of the appellants rely on article 8 ECHR grounds, and despite the fact that the notice of appeal to the First-tier did not...
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