Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal: AA/00327/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 1 February 2017
On: 2 February 2017

Before

Upper Tribunal Judge Pitt

Between

Giang [B]
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Talacchi, instructed by Morgan Hall Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

DETERMINATION AND DIRECTIONS FOR REMITTAL

1. This is an appeal against a determination dated 6 October 2016 of First-tier Tribunal Judge Boylan-Kemp which refused the appellant's asylum and human rights appeal.
2. The grounds challenge the findings and comments made by the First-tier Tribunal Judge at [11]. Judge Boylan-Kemp said this:
"The appellant failed to attend the appeal hearing despite a Notice of Hearing being sent to her last known address on 5 April 2016 and to her legal representative, Morgan Hall Solicitors, on the same date. The appellant's representatives had contacted the Tribunal on 5 September 2016 to update the appellant's address and to inform the Tribunal that they had received no contact since submission of the appeal fees in March 2016; I considered this communication and decided that effective notice of hearing had occurred and that this late contact immediately prior to the hearing date was no more than an attempt to frustrate the appeal process. Therefore, I was content to proceed in the absence of the appellant as I found that it was in the interests of justice to do so."
3. The appeal proceeded in the absence of the appellant and her legal representatives.
4. The grounds, put simply, argue that a procedural irregularity occurred such that a fair hearing did not take place. It was not open to the First-tier Tribunal to treat a letter from legal representatives regulated by the Law Society and with a duty of candour to the court as, in effect, being dishonest, maintaining that they and the appellant had not received notice of the hearing when they had. Neither the legal representatives nor the appellant had received notice of the hearing and the Tribunal had proper notice of that but still proceeded.
5. Having seen the letter of 5 September 2016 from the legal representatives, Mr Tufan agreed that it supported strongly the submission that it was not open to the First-tier Tribunal to proceed on the basis of the letter merely being "an attempt to frustrate the appeal process", that the only permissible interpretation of it was that the appellant and her legal representatives had not received notice of the hearing regardless of the hearing notices having been sent out and that a procedural error had occurred where the appellant had not had the opportunity to present her case.
6. I was in agreement with the parties as to there being an error of law on that basis and also as to the most appropriate disposal being to remit the appeal to the First-tier Tribunal where the appellant had not yet had a proper opportunity to present her case.

DECISION
7. The decision of the First-tier Tribunal discloses an error on a point of law such that it is set aside to be re-made.
8. The appeal is remitted to the First-tier Tribunal to be re-made de novo.

DIRECTIONS
9. The appeal will be heard at the Birmingham hearing centre on the first available date before a panel other than First-tier Tribunal Judge Boylan-Kemp.
10. No later than 7 days prior to the hearing, the parties are to file with the First-tier Tribunal and serve on the other party ALL evidence relied upon in a consolidated, indexed and paginated bundle.

Signed: Date: 1 February 2017
Upper Tribunal Judge Pitt