England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/15661/2008]

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th October 2010

Lord Justice Jackson:

1. This judgment is in five parts, namely;

Part 1. Introduction

Part 2. The Facts

Part 3. The Appeal to the Court of Appeal

Part 4. The Law

Part 5. Decision

Part 1. Introduction
2. This is an appeal by a foreign national against a decision of the Asylum and Immigration Tribunal, upholding a decision of the Secretary of State to deport him to Iraq.
3. In this judgment I shall refer to the European Convention for the Protection of Human Rights and Fundamental Freedoms as "ECHR". I shall refer to the Asylum and Immigration Tribunal as "AIT". I shall refer to the European Court of Human Rights in Strasbourg as "the Strasbourg Court". I shall refer to the Immigration Act 1971 as "the 1971 Act". I shall refer to the Nationality Immigration and Asylum Act 2002 as "the 2002 Act". I shall refer to the UK Borders Act 2007 as "the 2007 Act".
4. Section 3(5) of the 1971 Act provides:

"A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a): the Secretary of State deems his deportation to be conducive to the public good; …"

5. Section 32 of the 2007 Act provides:

"32 Automatic deportation

(1) In this section "foreign criminal" means a person-

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that -

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."

6. Section 33 of the 2007 Act provides:

"33 Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies (subject to subsection (7) below), and

(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention."

7. Article 8 of ECHR provides:

"1) Everyone has the right to respect for his private and family life, his home and his correspondence.

2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

It follows from section 33 of the 2007 Act that any foreign criminal who can bring himself within the protection of ECHR Article 8 will escape automatic deportation under section 32 of that Act.

Part 2. The Facts.
8. The appellant is an Iraqi citizen born on 1 February 1985. He is now aged 25. The appellant lived in Iraq up to the age of twelve. In August 1997 he came to the United Kingdom together with his mother and two younger sisters. The family made an application for asylum, but that was refused. However, leave to remain in the United Kingdom was granted. The appellant initially was given exceptional leave to remain up to the age of 21. Subsequently he was granted indefinite leave to remain.
9. Unfortunately, the appellant resorted to serious crime. On 25 April 2008 the appellant pleaded guilty to possessing a class A controlled drug (MDMA) with intent to supply, and possessing a class C controlled drug (cannabis) with intent to supply. The appellant was sentenced to sixteen months imprisonment. HHJ Gilbart, passing sentence, said this:

"It is a tragedy to see you in the dock: you are a man of good character; you come from a loving and supporting family. You became addicted to cannabis. You were persuaded to help your drug dealer to keep his stash of ecstasy tablets, which were handed over to you in a public place, being a superstore car park. In other words, this is not possession so that you could buy for yourself and a few friends, this is helping a drug dealer look after his drugs and a custodial sentence must follow.

I regard this as a serious case. I accept entirely the written basis of the plea that is put forward. This is not the first occasion, however, upon which this has happened. You now realise how deep in you had got into the criminal world of drug dealing, and of course that trait can only take place if there are those who are willing to be exploited, as you were, in the hope that you would continue to receive your supply of cannabis. There must be a custodial sentence and I am unable to suspend it. Had you been convicted after a trial on count 1, I would have sentenced you to two years, and on count 2 six months concurrent. I give you credit for your guilty plea at the outset. You will be sentenced to 16 months on count 1 and 4 months concurrent on count 2. I declare that you received £487 in benefit: your assets of £250 are available. I order forfeiture of the car, one week in default of payment, six months to pay."

10. The Secretary of State considered this matter under section 3(5) of the 1971 Act. He concluded that the appellant's deportation would be conducive to the public good. Accordingly, by letter dated 20 August 2010, the Secretary of State notified the appellant that he would be deported to Iraq upon completion of his sentence. In that letter the Secretary of State accepted that the appellant had an established private life, but not an established family life in the United Kingdom. The Secretary of State went on to say that deporting the appellant to Iraq would not give rise to a breach of Article 8. Such a deportation would be justified under the provisions of Article 8.2.
11. The Secretary of State in his letter did not make any express reference to the 2007 Act. Nevertheless, the Secretary of State must have concluded that exception 1, as stated in sections 32 and 33 of the 2007 Act, did not apply. That must follow from the Secretary of State's conclusion under Article 8 of ECHR.
12. The appellant appealed against the Secretary of State's decision to the AIT pursuant to section 82 of the 2002 Act. The appeal was heard on 19 November 2008 before a panel comprising Immigration Judge de Haney and Mr Baines. I shall refer to this panel as "the de Haney panel". The de Haney panel heard evidence from the appellant, his mother and his two sisters. The panel also heard evidence from the appellant's father, who was and is living in this country but is divorced from the appellant's mother. The panel concluded that the appellant had established family life in the United Kingdom. The panel then went on to consider the operation of Article 8.2. After assessing all the circumstances of the case the panel concluded that deportation of the appellant to Iraq would not be proportionate. Accordingly, the appellant had a right to remain in this country under ECHR Article 8 and deportation would be an unacceptable interference with his right to private life.
13. The Secretary of State was aggrieved by that decision and applied for reconsideration. Senior Immigration Judge Ward considered this application on 22 December 2008 and made an order for reconsideration. The reason stated in this order was that, in carrying out the balancing exercise under Article 8.2, arguably the AIT had failed to weigh in the balance the seriousness of the appellant's offence and the risk of reoffending. Following that order there was a first stage reconsideration hearing on the 18 February 2009. Senior Immigration Judge Moulden conducted that hearing. He concluded that there had indeed been the error of law to which Senior Immigration Judge Ward had referred, and the question of Article 8 proportionality had not been properly addressed. Senior Immigration Judge Moulden did not proceed there and then to redetermine the case. He thought that an opportunity should be allowed for evidence to be adduced from Ms Sarah Thomas, who was the girlfriend of the appellant. Whether they had gone through a form of marriage, and what the effect of that was, was a matter which remained for possible future consideration.
14. The Senior Immigration Judge adjourned the case for a second stage reconsideration. He said that the positive findings of credibility in relation to the four witnesses previously heard would stand as the panel's findings of fact.
15. The second stage reconsideration duly took place at a hearing on 2 April 2009 before Immigration Judge Irvine and Dr Okitikpi. I shall refer to the panel who heard this matter on 2 April 2009 as "the Irvine panel".
16. It would have been open to the appellant not to call evidence again from witnesses who had previously given evidence and to rely upon the findings of fact made by the de Haney panel. However, the appellant, who was legally represented, chose, as he was entitled to do, to give oral evidence and to call further oral evidence from his mother and his two sisters. This inevitably had the effect of re-opening the findings of fact which had been made by the de Haney panel on the oral evidence previously called.
17. The appellant did not call evidence from Ms Sarah Thomas, his girlfriend, who was currently serving a prison sentence. No timeous application was made for an adjournment, in order that that witness might be produced.
18. The Irvine panel considered the oral evidence which it had heard. On the basis of that evidence, the Irvine panel concluded that the appellant had not established family life in the UK as between himself, his mother and his sisters. By this time, of course, all of those individuals were adult. The Irvine panel noted that Ms Sarah Thomas had not been called as a witness, and that there was no timeous application for an adjournment in that regard. The Irvine panel was not satisfied that family life in the United Kingdom had been established as between the appellant and Ms Thomas.
19. The Irvine panel then moved on to consider the question of private life, and, in a passage to which I shall return later, the panel said that the appellant may have established private life in the UK, but he could exercise that in Iraq. The panel said that Article 8 was not therefore engaged. The panel then went on to consider the correct application of paragraph 364 of the Immigration Rules. Having considered the provisions of that paragraph, the panel concluded that deportation was the appropriate course. Accordingly, the Irvine panel dismissed the appellant's appeal against the Secretary of State's deportation decision.
20. The appellant was aggrieved by the decision of the AIT. Accordingly, he appealed to the Court of Appeal.
Part 3. The Appeal to the Court of Appeal
21. By a notice of appeal dated 19 June 2009 the appellant challenged the decision of the Irvine panel, essentially on the ground that the Irvine panel erred in holding that the appellant had not established family life in the UK. It is argued in the notice of appeal that in reaching this conclusion the Irvine panel went behind the findings of fact made by the de Haney panel. This was not open to the Irvine panel, having regard to the terms of the order made by Senior Immigration Judge Moulden on 26 February 2009.
22. Richards LJ considered the notice of appeal on the papers. Upon perusal of the pleaded grounds and the documents lodged, Richards LJ expressed considerable doubt about the grounds of appeal as presented. He suggested, however, that the appellant may have a better argument available, namely that the tribunal had not properly addressed the appellant's right to private life under ECHR Article 8. In those circumstances Richards LJ gave permission to appeal without imposing any restriction upon the grounds which may be argued.
23. The appellant's counsel lodged a skeleton argument taking up the points indicated by Richards LJ. The appellant's counsel argued that the Irvine tribunal had not properly addressed the appellant's private life in the United Kingdom. First, there was no finding as to whether or not the appellant did have a right to private life in the United Kingdom; secondly, on the basis that he did have such a right, the Irvine panel had not carried out the balancing exercise required under ECHR Article 8. The appellant's counsel argued that the tribunal ought to have recognised that the appellant had a right to private life under Article 8. The tribunal ought then to have considered the effect of Article 8.2. In particular, the tribunal ought to have considered whether deportation to Iraq was in accordance with the law and was "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others". That exercise would involve, in particular, considering whether the deportation was proportionate, having regard to the legitimate aim of the statute.
24. This appeal came on for hearing today. The appellant's counsel, Mr George Brown, very sensibly concentrated solely on the issue of private life under Article 8. He did not pursue the grounds of appeal as originally pleaded.
25. Before I address the surviving issue in this appeal, I must first review the relevant law.
Part 4. The Law
26. A number of recent decisions, both of the Strasbourg Court and of this court, have been focused on the entitlement of a state to deport young adults to a country which they left in childhood or in their youth. In Uner v Netherlands [2006] ECHR 464 10/99 a Turkish national arrived in the Netherlands with his family at the age of 12. Over the next few years he committed a number of serious offences for which he was sentenced to seven years imprisonment. The deputy minister of justice withdrew his resident's permit and made a ten-year exclusion order. Mr Uner's claim for breach of ECHR Article 8 was unsuccessful. Nevertheless, in giving judgment the Grand Chamber in the Strasbourg Court gave authoritative guidance as to how the Article 8 rights should be assessed in such a case. At paragraphs 57 to 59 the Grand Chamber stated:

"57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision […]. In Boultif v Switzerland (2001) ECHR 54273/00 the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria … are the following:

-the nature and seriousness of the offence committed by the applicant;

- the length of the applicant's stay in the country from which he or she is to be expelled;

-the time elapsed since the offence was committed and the applicant's conduct during that period;

-the nationalities of the various persons concerned;

-the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

-whether the spouse knew about the offence at the time when he or she entered into a family relationship;

-whether there are children of the marriage, and if so, their age; and

-the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

- the solidity of social, cultural and family ties with the host country and the country of destination.

As to the first point, the Court notes that this is already reflected in existing case law … and is in line with the Committee of Ministers' Recommendation Rec (2002)4 on the legal status of persons admitted for family reunification ….

As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the 'Boultif criteria' to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age …. Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.

59. The Court considered itself called upon to establish 'guiding principles' in the Boultif case because it had 'only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the other's country of origin' …. It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the 'Boultif criteria' are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy 'family life' there within the meaning of Art 8. However, as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world … and can sometimes embrace aspects of an individual's social identity …, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of 'private life' within the meaning of Art 8. Regardless of the existence or otherwise of a 'family life', therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the 'family life' rather than the 'private life' aspect."

I shall refer to the eight criteria listed in paragraph 57 of Uner as criteria 1 to 8. I shall refer to the two criteria listed in paragraph 58 of Uner as criteria 9 and 10.

27. In Maslov v Austria [2008] ECHR 546 the applicant, a Bulgarian national, entered Austria with his family at the age of six. Over the next ten years he committed numerous offences, for which he served custodial sentences. The Vienna Police Authority then made a ten-year exclusion order, as a result of which the applicant was deported to Bulgaria. The Strasbourg Court held, on the facts of this case, that there was a breach of the ECHR Article 8. In giving judgment, the Grand Chamber repeated and adopted much of its earlier judgment in Uner in relation to how Article 8 should be applied. The Grand Chamber attached particular significance to the fact that the applicant had come to Austria at a young age. At paragraph 71 the Grand Chamber said:

"71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

– the nature and seriousness of the offence committed by the applicant;

– the length of the applicant's stay in the country from which he or she is to be expelled;

– the time elapsed since the offence was committed and the applicant's conduct during that period;

– the solidity of social, cultural and family ties with the host country and with the country of destination."

28. At paragraph 73 to 75 the Grand Chamber said:

"73. In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).

74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).

75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile."

29. In JO (Uganda) v SSHD [2010] EWCA Civ 10; [2010] 1 WLR 1607, this court dealt with two cases concerning individuals who came to this country at a young age and committed criminal offences. The first case was an appeal against a deportation order. The second case was an appeal against an order for removal. Details of the two cases and indeed their outcomes (one appellant succeeded and one failed) are not material for present purposes. However, in the course of his judgment Richards LJ, with whom Toulson and Mummery LJJ agreed, helpfully reviewed the Strasbourg jurisprudence in this area. He regarded Uner and Maslov as the two crucial decisions. At paragraphs 20 and 21, Richards LJ said this:

"20. As to private life, it is emphasised at para 56 of the Üner judgment that settled immigrants will have ties with the community that constitute part of the concept of private life, which must therefore be considered even if the applicant has no family life in the host country. The importance of this can be seen from the discussion, at para 52 of the same judgment, of the Assembly's recommendation and the legislation enacted in some states to the effect that long-term immigrants cannot be expelled on the basis of their criminal record. The Strasbourg court rejected the concept of absolute protection, recognising that there is a balance to be struck under article 8; but the court has emphasised that it is a balance to be struck with a proper appreciation of the special situation of those who have been in the host country since childhood.

21. Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment [2009] INLR 47 will be the relevant ones. Further, paras 72-75 of that judgment underline the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. This is pulled together in para 75: for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion; and this is all the more so where the person concerned committed the relevant offences as a juvenile."

30. I am in full agreement with Richards LJ's analysis of the Strasbourg jurisprudence and his statement of the relevant principles in paragraphs 20 and 21. These are the principles which this court must apply in the present case in reaching its decision.
Part 5. Decision
31. In its determination, dated 14 April 2009, the Irvine panel held that, on the evidence, the appellant had not established family life in the UK. This was because the appellant, his mother and his sisters were all adults and there was no dependency between them. Furthermore, the appellant had not established family life as between himself and Sarah Thomas, who was currently serving a term of imprisonment. The decision that the appellant had not established family life in the UK was open to the Irvine panel on the basis of the oral evidence which it had heard, even though the de Haney panel had come to the opposite conclusion, on different evidence, concerning this issue. The appellant no longer challenges this part of the Irvine panel's decision.
32. The approach of the Irvine panel to the issue of private life is less satisfactory. The panel stated as follows, in paragraphs 42 and 43:

"42. It may be that it can be argued that the appellant has established private life in the United Kingdom, and that Article 8 is engaged. Even if that were the case, although we do not find that the evidence supports this, his entitlement to exercise his private life in the United Kingdom is a qualified right, and he does not have the right to choose the place where he can exercise his private life and we find that he will be able to exercise his private life in Iraq if he is returned there.

43. For the reasons which we have given we have concluded that this is not a case which engages Article 8 of the ECHR. It is now necessary for us to consider paragraph 364 of the Immigration Rules."

There was no reason for the Irvine panel to be in doubt as to whether or not the appellant's private life in the United Kingdom had been established. This much had been conceded by the Secretary of State in his original letter dated 20 August 2008. Furthermore, Mr Sachdeva, counsel for the Secretary of State today, tells us that it was common ground at the hearing before the AIT that the appellant had established private life in the United Kingdom.

33. In the section of its determination beginning at paragraph 42, the panel starts on the wrong foot. It then compounds that error. Having accepted that there might possibly be private life in the UK, the panel does not then carry out the assessment exercise required by ECHR Article 8. Instead, the tribunal moves straight on to paragraph 364 of the Immigration Rules and applies the provisions of that paragraph. What the tribunal ought to have done at this stage of its reasoning was to apply the criteria identified by the Strasbourg Court in Uner and subsequently elaborated in Maslov.
34. Of the ten criteria set out in Uner, numbers 1, 2, 3, 5 and 10 are relevant to the present case. Mr Sachdeva, who sought valiantly to uphold the panel's decision, submits that if one looks at earlier paragraphs of the panel's determination one can see that it had all of those criteria in mind. In relation to criterion 1, the nature and seriousness of the offence, I agree that this was duly considered by the panel. However, criterion 2, the length of the appellant's stay in the United Kingdom, is not addressed. It is true that the length of the appellant's stay can be deduced from the dates stated in the factual section of this determination. However, this factor is not stated or presented as something which the panel was weighing up under Article 8. Nor is there any discussion about criterion 3, namely the time elapsed since the offence was committed and the appellant's conduct during that period. Mr Sachdeva submits that the relevant facts can be discerned from earlier paragraphs in the determination and therefore the panel must have had these matters in mind. However, there is a great difference between that and the panel actually taking this matter into account in the assessment exercise under ECHR Article 8.2. As to criterion 5, I accept that the appellant's family situation is discussed, but only with reference to whether "family life" in the UK is established.
35. Criterion 10, namely "the solidity of social, cultural and family ties with the host country and with the country of destination", is important. This is because the applicant came to the UK at the age of twelve; the applicant spent all of his teenage years in this country. The panel does not address criterion 10 and does not weigh it in the balance. Again, I am not persuaded by the references to material facts in earlier paragraphs, to which Mr Sachdeva draws attention, that this constitutes a proper consideration of criterion 10 by the Irvine panel.
36. The Strasbourg Court stated in paragraph 75 of Maslov:

"…the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion."

As Pill LJ pointed out during argument, the panel does not grapple with this paragraph at all. The panel does not consider whether the reasons relied upon by the Secretary of State are sufficient to justify deporting to Iraq someone who has lived in this country since the age of twelve. Mr Sachdeva submitted that the appellant had not been lawfully in this country since the age of twelve, because it was only in May 2002 that indefinite leave to remain was granted to the appellant. I do not see any force in this submission. The appellant arrived as a boy of twelve with his mother and sisters in this country. The mother promptly made an application for asylum. That application was processed with some delay, no doubt due to the acute pressures that the Home Office was under. In due course, the asylum application was refused but leave to remain was granted. In my view, it cannot be said that an early part of the appellant's residence in this country should be characterised as unlawful in order to escape the effect of paragraph 75 of the Maslov decision. I do not see in the earlier paragraphs of the Irvine panel's determination any grappling with the issues raised by that paragraph.

37. I do not suggest that the AIT should have written a lengthy treatise on these issues under Article 8. It would have been quite sufficient if the panel had identified the relevant criteria, assessed them concisely and then stated its decision one way or the other under Article 8. Unfortunately, the panel has not undertaken this exercise. I do not know what decision the panel would have reached if it had undertaken this exercise. Therefore, in my view, this case must be remitted for redetermination.
38. Let me now draw the threads together. For the reasons stated above, I would allow this appeal and remit the case to the Upper Tribunal for redetermination. The issue for the Upper Tribunal to determine will be whether the interference with the applicant's right to private life in the United Kingdom by deporting him to Iraq is justified under ECHR Article 8.2.

Lord Justice Pill:

39. I agree.

Lord Justice Patten:

40. I also agree.

Order: Appeal allowed. Case remitted to the Upper Tribunal for redetermination