United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/28265/2015

 

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre	Decision & Reasons Promulgated
On 30 May 2017	On 14 June 2017

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

 

Between

 

omar givanni clarke

(no anonymity order)

Appellant

and

 

SECRETARY OF STATE FOR the HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellant: Ms A Bhachu, instructed by JM Wilson, Solicitors

For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.             The appellant appeals with permission against the decision of FtT Judge Fox that was issued on 2 September 2016.

2.             No anonymity direction was made by the First-tier Tribunal and there is no reason to make such an order in the Upper Tribunal.

3.             At the outset of the hearing, Ms Bhachu and Ms Aboni informed me that having discussed the case they were agreed that Judge Fox had failed to have proper regard to article 8 ECHR because he had failed to make necessary findings; and that his failure to make necessary findings amounted to an error on a point of law.

4.             I was advised that Judge Fox did not make findings about whether the appellant had resided in the UK for over thirteen and a half years as claimed, about whether the nature of the appellant's convictions meant he did not meet the suitability requirements of the immigration rules, or about whether the appellant's criminal record meant his personal circumstances were outweighed by the public interest.

5.             Having considered the decision and reasons statement, I am satisfied Judge Fox has not given adequate attention to these three issues and that they undermine his decision. I find his decision cannot be sustained and I set it aside.

6.             Ms Bhachu and Ms Aboni were agreed that the nature of the error meant the appeal needs to be remitted to the First-tier Tribunal for a fresh hearing. I agree.

7.             I order the appeal is to be remitted to the First-tier Tribunal with the following directions.

a.       The remitted appeal can be heard by any judge other than Judge Fox.

b.       No findings are preserved.

c.        The parties can provide further evidence in support of their positions as long as any additional documentary evidence are provided at least 14 days before the next hearing.

 

Decision

The decision and reasons statement of FtT Judge Fox contains an error on a point of law and is set aside.

The appeal is remitted to the First-tier Tribunal as per the directions in paragraph 7 above.

 

 

Signed Date 12 June 2017

 

Judge McCarthy

Deputy Judge of the Upper Tribunal