In relation to disposal, recent guidance has been provided as to whether it is appropriate for an appeal to be retained within the Upper Tribunal or remitted to the First-Tier Tribunal in the case of Begum [2023] UKUT 46 .
Paragraph 7.2 (a) and (b) of the Practice Statement relating to disposals of appeals by the Upper Tribunal reads:
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
In the current appeal there is accepted legal error made by the Judge as pleaded. I find that considering matters as a whole the effect of the accepted errors has been to deny the appellant a fair hearing and to have his case considered by the First-tier Tribunal properly.
In relation to the extent of the fact finding that will be required in order to determine the appeal, it will be extensive. I find on that basis both exceptions set out in paragraph 7.2 are made out and that it is appropriate for the appeal to be remitted to the First-tier Tribunal (IAC) sitting in Manchester to be heard afresh by a judge other than Judge Lloyd-Smith.
Notice of Decision
The First-tier Tribunal Judge materially erred in law. I set the determination aside with no preserved findings.
I remit the appeal to the First-tier Tribunal sitting at Manchester to be heard d2022-Lloe novo by a judge other than Judge Lloyd-Smith.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
June 2023