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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-004227
	First-tier Tribunal Nos: HU /51506/2022 IA/02376/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

21 ^st February 2025

 

Before

 

UPPER TRIBUNAL JUDGE MAHMOOD

 

Between

 

MT

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms M Chowdhury, Counsel, instructed by Waterstone Legal

For the Respondent: Ms A Nolan, a Senior Home Office Presenting Officer

 

Heard at Field House on 28 November 2024

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family within the Family Law Proceedings is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant or those persons, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court . The parties may seek a variation of this order on notice.

DECISION AND REASONS

 

1.              The Appellant, a national of Bangladesh, appeals with permission against the decision of First-tier Tribunal Judge Raymond ("the Judge") who had refused his human rights appeal.

Background and Grounds of Appeal

2.              The Appellant had relied on three grounds of appeal against the Judge's decision. Ground 1 contended that the Judge's decision was not clearly structured. Ground 2 contended that the Judge had failed to consider the latest order of the Family Court dated 20 March 2024 in his decision. Ground 3 contended that the Judge had erred by making findings in the First-tier Tribunal in respect of allegations made by the Appellants former wife in the Family Court proceedings.

3.              First-tier Tribunal Judge Mills had granted permission to appeal on all grounds, but he referred in particular to Ground 2 whereby at paragraph 27 of the Judge's decision, the Judge had thought that the 'latest order' of the Family Court was one dated 23 August 2023 and not the order made on 20 March 2024. It was also observed that the Judge had made findings on matters which were to be the subject of an imminent fact-finding hearing in the Family Court.

4.              The Judge had referred at paragraph 7 of his decision to there being permission of Judge Atkinson at the Family Court sitting at East London to refer to the family court proceedings.

The Hearing Before Me

5.              At the hearing before me, Ms Chowdhury had relied on the grounds of appeal and said that the order of 20 March 2024 was before the First-tier Tribunal because it could be seen that it had been uploaded to the Portal the day before the hearing. She submitted that from paragraph 15 onwards, the Judge had set out a narrative of the Family Court proceedings. It was submitted that the Judge had conducted a fact-finding hearing at the Tribunal as a family law judge and not as an immigration judge. It was submitted further that the Judge had not considered the Order of 20 March 2024 because it could be seen from paragraph 27 of the Judge's decision that the Judge was referring to an older order from the previous year dated 23 August 2023.

6.              Ms Chowdhury submitted that the ought to be a remittal of the matter to the First-tier Tribunal for a rehearing and for the matter to be listed after March 2025 because the Family Court proceedings will be taking place at that time.

7.              Ms Nolan submitted that it was not material that the Judge had not taken into account the further Family Court order. The Judge's failure to do so was not a material error of law when looking at the reliance that the Judge had placed on the 2023 Family Court order. Ms Nolan submitted that the Judge had not made any specific findings in respect of the domestic violence allegations. Ms Nolan placed emphasis on the Judge's findings at paragraph 23 that the Appellant was being dishonest. Ms Nolan submitted that if I was to find that there was a material error of law in the Judge's decision then the matter ought to be considered by the First-tier Tribunal as the findings of the Judge will have been affected.

Analysis and Conclusion

8.              In my judgment, the Judge materially erred in law. My reasons for this conclusion are as follows.

9.              Firstly, the Judge made findings relating to the Family Court proceedings, but such findings were not open to him and nor was it the task of the Judge to make such findings. At paragraph 15 onwards under the sub-heading of "Findings" the Judge referred at length to the Local Authority's papers which had been provided to the parties and First-tier Tribunal pursuant to the request to the Family Court. It is therefore manifest that the Judge did indeed make findings and I am therefore not able to accede to Ms Nolan's submissions that the Judge did not make findings. He clearly did.

10.          The Judge had referred in detail to the extensive paperwork and history recorded within the documents. The Judge made findings in respect of what he had read within those papers. Including at paragraph 22 in which the Judge referred to, " The very substantial and considerable weight of the evidence from the Child Protection services in [the Local Authority] establishes the Appellant...has had no moral compunction in the stewardship that he has had as a parent for the welfare of all four children...". Then at paragraph 24 the Judge said, "The dishonesty over the parlous history of the harm he has done to the children and to their mother, being so similarly apparent in the present appeal..."

11.          It was not open to the Judge to make such findings because those matters were the subject of contested proceedings at the Family Court. Clearly it would be at the Family Court that the persons making the allegations (including the Appellant's former wife) would be giving evidence and the Appellant would then be able to challenge the evidence. The persons making the allegations were not witnesses at the First-tier Tribunal, but the Appellant challenged their evidence. There was procedural impropriety in the Judge's approach because the Judge had made findings merely with the papers from the Family Court and thereby only with the evidence of one side.

12.          Secondly, the Judge did not take the most recent 2024 order into account in any event which arguably presented a slightly 'improved picture of the possible prospects of a section 8 Children Act 1989 order being made in favour of the Appellant. It was thereby a material error of law for the Judge to fail to take into account the latest Family Court order. Whilst I have sympathy for the Judge that the order was only uploaded onto the Portal the day before the hearing, nonetheless it was even then a document provided to the Judge.

13.          Although it is possible that the Family Court might ultimately make findings against the Appellant in the terms set out within the Local Authority's documents and witness statements, that was a step yet to be taken at the Family Court. It is clearly a breach of natural justice for the Judge at the First-tier Tribunal to assume that the Local Authority's written evidence was necessarily going to be the outcome of the Family Court proceedings.

14.          Whilst I read what is set out within the Family Court proceedings as being worrying, I cannot assume that the Family Court will ultimately make such findings or that the Appellant will make admissions that he has done the things he has been accused of. I also note the concern of the Judge that the Appellant appeared, in reality, to be 'playing the system'. That though, was not a conclusion that could yet be reached by the Judge.

15.          It was therefore an error of law for the Judge to make the findings that he did.

16.          Neither party had referred me to the decision of the Upper Tribunal (McFarlane LJ, as he then was, presiding) in RS (immigration and family court proceedings) India [2012] UKUT 218 (IAC). The judicial headnote makes clear that,

" 1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:

i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?

ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?

iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child's welfare?

2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant's previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child's welfare lies?

3. Having considered these matters the judge will then have to decide:

i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?

ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on  MS (Ivory Coast)   [2007] EWCA Civ 133 ?

iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?

iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?"

17.          The Judge had considered a previous adjournment application and which had referred to the later decision in CJ (family proceedings and deportation) South Africa [2022] UKUT 336 and had that been considered adequately, it is very likely that the material error made in this case, would not have been made.

18.          Ms Chowdhury said that she would ensure she would attend the Family Court proceedings armed with those two decisions of the Upper Tribunal so as to assist the Family Court judge. She said it was very likely that she would be instructed in the immigration and family law proceedings. That will clearly be helpful for the Tribunal and for the Family Court if she is because she will then be able to explain the matter to both judges.

19.          I had also canvassed with the parties whether this might be an appropriate case in which I as, a Judge of the Upper Tribunal with additional authorisation to sit in the Family Court ought to hear both matters. The parties submitted that whilst that might be helpful in most cases, in this instance if I was to find a material error of law, then it was appropriate instead for the matter to be remitted to the First-tier Tribunal for a complete rehearing. The parties also suggested that the matter ought best to be heard after the Family Court proceedings which are currently listed there in March 2025.

20.          I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). I carefully consider whether to retain the matter for remaking in the Upper Tribunal in line with the general principles set out in paragraph 7 of the Senior President's Practice Statement. I take into account the history of the case, the nature and extent of the findings to be made and I consider paragraphs 7.1 and 7.2 of the Senior President's Practice Statement.

21.          Given the scope of the issues and findings to be made, I consider that it is appropriate that the First-tier Tribunal remake the decision.

22.          Whilst further directions are a matter for the First-tier Tribunal, it appears appropriate that the matter be considered initially by the First-tier Tribunal by way of a case management hearing with the Appellant's solicitors providing a complete update relating to the Family Court proceedings. It also remains imperative that the Appellant's solicitors ensure that there is continued permission from the Family Court to disclose the Family Court papers to the FTT (Immigration and Asylum Chamber) too.

Notice of Decision

23.          The decision of the First-tier Tribunal contains a material error of law. The decision of the First-tier Tribunal is set aside. There will be a de novo hearing at the First-tier Tribunal. None of the current findings of the Judge shall stand.

24.          The First-tier Tribunal shall provide further directions but what I say at paragraph 22 above about a Case Management hearing is suggested to the First-tier Tribunal to assist with the future conduct of the case.

 

 

 

 

Abid Mahmood

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

10 February 2025