Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00969/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 17 March 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

mr tamaz rashoyan
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr E. Tufan, Specialist Appeals Team

DECISION AND REASONS
1. The appellant appeals to the Upper Tribunal (“UT”) on procedural fairness grounds from the decision of the First-tier Judge Graves promulgated on 10 October 2016 dismissing his appeal against the decision by the SSHD to refuse to issue him with a residence card as confirmation of his right to reside in the United Kingdom as the extended family member (“EFM”) of an EEA national exercising treaty rights here. The First-tier Tribunal (“FTT”) did not make an anonymity order, and I do not consider that such an order is warranted for these proceedings in the UT.
The Decision of the First-tier Tribunal
2. The Judge decided the appeal “on the papers” as there was no appearance by the appellant or by a presenting officer at the scheduled oral hearing on 5 October 2016. The Judge dismissed the appeal for want of jurisdiction, applying Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC).
The Application for Permission to Appeal
3. The appellant applied for permission to appeal to the UT on the ground that he had been denied the opportunity to be legally represented at the hearing. He had had an appointment with his new representatives at 4.30pm on 5 October 2016, which was the earliest appointment he could get, and they had immediately faxed a request to the Tribunal for an adjournment. The fax had apparently not reached the Judge.
The Grant of Permission to Appeal
4. FTT Judge Page noted that Yemets Solicitors had sent a fax to Hatton Cross just before 4pm on 5 October 2016 seeking an adjournment. It was not clear when the Judge came to hear the appeal, “but it may be arguable that there has been a procedural error that denied the appellant a fair hearing”.
Discussion
5. Judge Graves acted reasonably in proceeding with the hearing of the appeal in the absence of the appellant or his legal representative. The appellant had not applied in advance for an adjournment in order to obtain new legal representation. The appellant knew or ought to have known that he was expected to attend the Tribunal at 10am; and that if he did not appear, the hearing was likely to go ahead in his absence.
6. The fact that the Judge acted reasonably is not determinative of the question whether there has been a defect of a procedural nature in the proceedings at first instance which has resulted in unfairness and which amounts to a material error of law requiring the decision of the First-tier Tribunal to be set aside: MM (unfairness: E&R) Sudan [2014] 105 (IAC).
7. In MM, the President made reference to the principle articulated by Carnwath LJ in E & R v Home Secretary [2014] EWCA Civ 49 at paragraph [64]. The court was concerned in E & R to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when an inferior body or Tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong.
8. At paragraph [64] Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular Appellant and with any Tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken “on the best information” and on the correct factual basis.
9. In the same case at paragraph [15] the President considered the case of Cotton [1990] IRLR 344. In Cotton, the issue, in a nutshell, was whether the decision of the Chief Constable to dismiss a police officer was vitiated by procedural unfairness on account of inadequate disclosure to the officer of the case against him. The Presidential panel distilled the following principles from Cotton:
“(i) The defect, or impropriety, must be procedural in nature. …
(ii) It is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.
(iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
(iv) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred.”
10. Judge Graves made a mistake of fact in holding at paragraph [11] of his decision that no party had applied for an adjournment. Unknown to Judge Graves, the appellant’s new legal representatives had applied to the Tribunal for an adjournment, albeit very late; and so the appellant was not heard on the question of whether an adjournment should be granted.
11. However, if this is a procedural irregularity (which is a matter of debate, given the lateness of the adjournment application), I am in no doubt that it has made no difference to the outcome, and so the appropriate conclusion is that no unfairness has been caused to the appellant.
12. The FTT Judge had to apply Sala. The appellant has not been deprived of a fair hearing of his appeal, or of his adjournment application, as the FTT Judge was bound to rule that he had no jurisdiction to hear his appeal.

Conclusion
13. The decision of the FTT did not contain an error of law, and accordingly the decision of the FTT stands.
Anonymity
No anonymity order is made.

Signed Date 24 March 2017

Deputy Upper Tribunal Judge Monson