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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-002884 UI-2024-002885 UI-2024-002887 UI-2024-002888 UI-2024-002890 UI-2024-002892 UI-2024-002895
	First-tier Tribunal No: EA/04777/2021 EA/04780/2021 EA/04783/2021 EA/04784/2021 EA/04787/2021 EA/04789/2021 EA/04790/2021

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

20 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE COLE

 

Between

 

AN ENTRY CLEARANCE OFFICER (153262)

Appellant

and

 

JAWAIRIA SHABBIR

MUKHTAR HUSSAIN

SHAH HUSSAIN MUKHTAR

SHAH ZAIN MUKHTAR

AQSA BATOOL

MARIA BATOOL

NADIA BATOOL

(Anonymity order not made)

Respondents

Representation :

For the Appellant: Miss Newton, a Senior Home Office Presenting Officer.

For the Respondent: Mr G Brown, instructed by Central Chambers Law Solicitors.

 

Heard at Manchester Civil Justice Centre on 11 February 2025

 

DECISION AND REASONS

 

1.        The Entry Clearance Officer (ECO) appeals with permission a decision of First-tier Tribunal Judge Hillis, promulgated on 10 May 2024, in which he found the First-tier Tribunal had no jurisdiction to deal with these appeals.

2.        It is necessary to enable a full understand of the final outcome to take account of the procedural history of these appeals.

3.        Jawaira Shabbbir applied for an EU Settlement Scheme Family Permit on 22 November 2020 on the basis of being a 'family member of a relevant EEA citizen', her father. That application was refused on 8 April 2021.

4.        Mukhtar Hussain applied for an EEA family permit to accompany the EEA sponsor into the United Kingdom as an extended family member of an EEA national. That application was refused on 10 March 2021.

5.        Shah Hussain Mukhtar applied for an EU Settlement Scheme Family Permit on 22 November 2020 on the basis of the relationship with the EEA citizen sponsor in the UK being their grandfather. That application was refused on 17 March 2021.

6.        Shah Zain Mukhtar applied for an EU Settlement Scheme Family Permit on 22 November 2020 on the basis of the relationship with the EEA citizen sponsor in the UK being their grandfather. That application was refused on 17 March 2021.

7.        Aqsa Batool applied for an EU Settlement Scheme Family Permit on 21 November 2020 'family member of a relevant EEA citizen'. That application was refused on 17 March 2021.

8.        Maria Batool applied for an EU Settlement Scheme Family Permit on 21 November 2020 as a 'family member of a relevant EEA citizen'. That application was refused on 17 March 2021.

9.        Nadia Batool applied for and EU Settlement Scheme Family Permit on the basis of being a 'family member of a relevant EEA citizen' which was also refused on 17 March 2021.

10.    The above respondents are all citizens of Pakistan.

11.    Their appeals against the decisions of the ECO came before a judge of the First-tier Tribunal at Taylor House on 23 February 2022 who, in a decision promulgated on 24 February 2022, dismissed the appeals.

12.    Permission to appeal was granted by another judge of the First-tier Tribunal, the operative part of the grant being:

2. As pleaded in the Grounds of Appeal, it is at least arguable that the FTTJ has erred in failing to reconcile the finding that the Appellants' sponsor owns and pays for the house in which they live in Pakistan [26 & 27] with the finding that the Appellants are not dependent upon their sponsor to meet their essential living needs [28]. Whilst the FTTJ finds that the Appellants have income from other sources, the FTTJ appears to accept that their essential accommodation needs are met by the Sponsor and dependency is a matter of fact not choice.

13.    The Error of Law hearing came before the Upper Tribunal sitting at the Manchester Civil Justice Centre on 11 October 2023. In a determination promulgated on 31 January 2024 the Upper Tribunal Judge wrote:

4. At the initial hearing at Manchester on 11 October 2023, the representatives for both parties agreed that the First-tier Tribunal's decision should be set aside, the appeals allowed and the appeals returned to the First-tier Tribunal for determination for the reasons set out in the grounds of appeal and summarised in part in the grant of permission:

As pleaded in the Grounds of Appeal, it is at least arguable that the FTTJ has erred in failing to reconcile the finding that the Appellants' sponsor owns and pays for the house in which they live in Pakistan [26 & 27] with the finding that the Appellants are not dependent upon their sponsor to meet their essential living needs [28]. Whilst the FTTJ finds that the Appellants have income from other sources, the FTTJ appears to accept that their essential accommodation needs are met by the Sponsor and dependency is a matter of fact not choice.

5. The appeals are returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

14.    In his skeleton argument dated 18 March 2022, prepared in support of the application for permission to appeal, Mr Brown at [7] wrote:

7. On the basis of the Judges positive findings arguably the appeal should have been allowed on the basis that there was accepted evidence that the A's would not be able to have their accommodation needs and expenses being met without the finances provided by the Sponsor. Each of the A's needed the accommodation and the covering of household living expenses which had been provided by the Sponsor and his wife. This evidence needed to be assessed through the lens of the A's previously being granted family permits to join the Sponsor as his dependants in Spain.

15.    The appeal was relisted in the First-tier Tribunal before Judge Hillis. Both parties were represented.

16.    Judge Hillis records as a preliminary issue counsel for the above respondents, the appellants before him, raising the issue of an extemporaneous decision having been made by the Upper Tribunal at the hearing on 11 October 2023 against the earlier decision of the First-tier Tribunal. It was stated that the Senior Presenting Officer who attended on 11 October 2023 noted that the appeals were allowed outright and not remitted to the First-tier Tribunal.

17.    Judge Hillis considered the reported determination of PAA (FfT: Oral Decisions - written reasons) Iraq [2019] UKUT 13 in which the situation was examined where a judge in the First-tier Tribunal had delivered an oral decision at a hearing but then subsequently issued a written decision inconsistent with the oral decision. It was found in PAA that both decisions of the Tribunal had to stand until set-aside by a court of competent jurisdiction, but that neither party was entitled to enforce either decision until the matter had been sorted out on appeal.

18.    At [10 - 12] Judge Hillis writes:

10. In my judgment, the factual situation before me can be distinguished from that in PAA as I conclude that the purported Decision dated 31st January, 2024 by the Upper Tribunal is not a valid Decision to remit these appeals back to the First-tier Tribunal but one which can be properly described as an administrative mistake by the Upper Tribunal Judge, namely, attaching the incorrect appeal numbers to the Decision to remit another entirely separate case to the First-tier Tribunal having allowed that appeal. I conclude there was no such purely administrative error in PAA.

11. If I am correct in the above conclusion then there is no valid appeal before me as the extemporaneous oral Decision of the Upper Tribunal was to allow the appeals outright.

12. If I am not correct in reaching the above conclusions then I still have no jurisdiction to deal with these appeals before me as both Decisions "stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either Decision until the matter has been sorted out on appeal" as I am not of a competent jurisdiction to set aside a Decision of the Upper Tribunal.

19.    The ECO sought permission to appeal asserting Judge Hillis had made a material misdirection of law on a material matter. Within that application is an application pursuant to rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 directed to the Upper Tribunal judge concerned effectively asking whether they were willing to correct the mistake in directing that the appeals be remitted to the First-tier Tribunal when it had been agreed that they had been allowed.

20.    No decision was made on the Rule 42 application and permission to appeal was granted by another judge of the First-tier Tribunal on 19 June 2024, the operative part of the grant being in the following terms:

2. The background to the application is that by a notice, dated 31 January 2024, the Upper Tribunal remitted the appeal de novo to the First Tier Tribunal. At the remitted hearing, Judge Hillis found that at the hearing on 11 October 2023, the Upper tribunal had decided to allow the appeals. As such, he found that the Upper tribunal had made two conflicting decisions and only the Upper Tribunal can decide which decision stands. He concluded that the First Tier Tribunal does not have jurisdiction to hear the linked appeals.

3. This is a very unusual situation. The judge found himself in a difficult position and both parties have lodged appeals against his decision. Given the Upper Tribunal notice, it is arguable that the judge erred in law, in finding that the tribunal has no jurisdiction. I have considered whether I should exercise my power under rule 32 and or Rule 35. However, having had regard to the tribunal's overriding objective, in my judgement, the most effective way of resolving the outstanding issues is to grant both parties permission to appeal. Once the Upper Tribunal are seized of the matter, the Upper Tribunal should be able to clarify its position.

21.    Immediately prior to the hearing of the appeal before us today the Upper Tribunal judge concerned was made aware of the issues that had been raised in this appeal to see whether he was able to assist in relation to the decision that was made on the 31 January 2024.

22.    The reply, which was read verbatim to the parties at the start of the hearing, was:

My decision reads:

At the initial hearing at Manchester on 11 October 2023, the representatives for both parties agreed that the First-tier Tribunal's decision should be set aside, the appeals allowed and the appeals returned to the First-tier Tribunal for determination for the reasons set out in the grounds of appeal and summarised in part in the grant of permission ...The appeals are returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

I'm guessing that Ian Hillis has misunderstood the highlighted passage. The allowed appeals were those made to the Upper Tribunal. It is, with respect to Ian, obvious that he needed to rehear the appeal against the Entry Clearance Officer's decision and remake the decision.

23.    We had been provided with a copy of the recording of the hearing that took place on 31 January 2024. Having listened to that recording we can understand why confusion has arisen in the minds of the parties in relation to the above events.

24.    It is clear from that recording that, following discussion with the advocates who were present on the day before the Upper Tribunal, that the Judge did state that in light of [7] of Mr Brown skeleton argument he was minded to allow the appeal. There was, however, no further clarification. The Judges clearly interpreted what he said as being that he allowed the appeal against the decision of the First-tier Tribunal rather than allowing the appeal substantively outright.

25.    Whilst this interpretation was challenged before us by Mr Brown who maintained the Judge had allowed the appeal outright, the Judges own interpretation of what decided on the day is perhaps more clearly demonstrated by the fact the Judge in his error of law finding, having confirmed he had allowed the appeal, he remitted the appeal to the First-tier Tribunal rather than allowing the appeal outright.

26.    Rule 40(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits the Upper Tribunal to give a decision orally at a hearing. Rule 40(2) provides that the Upper Tribunal must provide to each party as soon as reasonably practicable after the making a decision notice stating the Upper Tribunal's decision and notification of any rights of appeal. The determination that was produced remitting the appeal de novo is the only decision produced by the Upper Tribunal in accordance with rule 40(2).

27.    Whilst we accept there appears to be a degree of ambiguity in relation to what was said, when, and by whom, it was agreed at the hearing that the pragmatic way forward in relation to this appeal was to take the starting point for our consideration as being the recent email from the Upper Tribunal judge concerned in relation to his recollection of what occurred on the day.

28.    We accept that this information was not before Judge Hillis who found as he did on the basis of the assertions by the advocates before him that the Upper Tribunal judge had allowed the appeal outright at the error of law stage.

29.    On the basis of what we now know we find Judge Hillis did have jurisdiction to determine the merits of the appeal and on that basis we find material legal error in his conclusion as to lack of jurisdiction and set that decision aside.

30.    It was agreed with the parties that we could proceed to remake the decision on the day. It was agreed that in light of the situation set out at [7] of Mr Brown's grounds, to which we have made reference above, that the issue of dependency to meet essential needs in relation to accommodation has been met. It was accepted, by consent, that it was appropriate that we should allow the appeal outright, which we do.

Notice of Decision

31.    The First-tier Tribunal has been shown to have materially erred in law through no fault of the Judge. That decision is set aside.

32.    We substitute a decision to allow the appeals.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 February 2025