Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04835/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th January 2018
On 17th January 2018

Before

UPPER TRIBUNAL JUDGE S M REEDS
DEPUTY JUDGE FARRELLY OF THE UPPER TRIBUNAL

Between

MISS MOTUNDE REMILEKUN OLUJOBI
(NO ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr James Khalid, Counsel, instructed by Chancery CS Solicitors
For the Respondent: Mr Antony Melvin, Home Office Presenting Officer.

DETERMINATION AND REASONS
Introduction
1. This appeal was heard by First-tier Judge Bowler at Hatton Cross on 25 September 2017 and was dismissed. The appeal was in respect of a decision taken by the respondent on 15 March 2016. That decision refused the appellant's application for confirmation she was entitled to a right of permanent residence by virtue of European Treaty provisions. The decision also sought to revoke her existing residence card. This was on the basis that her marriage to an EU national was one of convenience.
2. Neither the appellant nor her representatives, Chancery CS Solicitors, attended the appeal. The judge noted her representatives had provided an appeal bundle and they had been sent a notice of hearing. In the absence of any further explanation the judge decided to hear the appeal in the appellant's absence.
3. The judge concluded that the evidence, principally a home visit by immigration officials, provided a reasonable basis for contending the appellant's marriage was one of convenience. At paragraph 33 the judge said:
"I have taken account of the Appellant's Witness Statement where she denies saying what the immigration officers' note records. However, the Appellant did not attend and therefore her evidence could not be tested in cross-examination. Consequently I reduce the weight I give to her evidence."
4. The judge went on to find that the evidence, principally the home visit by integration officials, discharged the legal burden of demonstrating this was a marriage of convenience. The appellant had not discharge the evidential burden that it was not. The judge referred to the absence of supporting evidence, such as from friends, to show that the marriage was genuine.
The Permission to appeal.
5. Permission to appeal was granted based on the assertion by the appellant's representatives that they were not advised of the date of hearing. The application contends that whilst the original hearing was scheduled for 25 September 2017 the Tribunal issued them with a fresh Notice of Hearing, on the 14th August 2017, for a hearing listed on the 16th October 2017.
The Upper Tribunal
6. Mr Khalid, Counsel for the appellant, said his instructing solicitors had prepared an appeal bundle in anticipation of the scheduled hearing for 25 September 2017. There is a Notice on file, dated 15 May 2017, from the tribunal advising the parties of this hearing. The appeal was assigned the reference number EA/04835/16.This is the appeal that First tier Judge Bowler dealt with. They then received a further notice of hearing; dated 14 August 2017, advising of a hearing on 16 October 2017.They did not attend the earlier hearing.
7. Mr Khalid advised that the appellant attended the hearing on 16 October 2017, by which stage she had received the decision of First tier Judge Bowler. She produced this decision to the second judge who adjourned the listed hearing so that enquiries could be made.
8. Mr. Melvin, Senior Presenting Officer, relied upon the rule 24 response. That response refers to a note made by the Presenting Officer in attendance at the hearing of 16 October 2017. It records that that appeal had been assigned file number EA/03631/2016. The note records that it was apparent at the hearing that the appellant had in fact two appeals, one of which had already been dealt with and was dismissed.
Consideration
9. The file reference EA/03631/2016 has still not been linked to the file in the present appeal. Consequently, we have limited information about that appeal. So far as we can tell from the representatives that second appeal has not progressed further.
10. The application for permission to appeal refers to a letter of 14 August 2017 and suggests a new date of hearing was being fixed. No such letter has been produced. What is available is a Notice of Hearing for the 14th August 2017. This was addressed solely to the appellant's solicitors. Notably, it has a different reference number from the one issued on the 15th May 2017 and refers to a "Mr" rather than "Miss" Olujobi.
11. We accept that a possible explanation of events is that when the appellant's representatives received the later Notice of Hearing they assumed that the date of the earlier hearing had changed. In fairness to them the Tribunal should also have noted the different appeal files and linked the appeals. Furthermore, the appellant's representatives did write to the Tribunal by letter dated 12 May 2016 pointing out that the appellant was a `Miss' and not a `Mr'. However, the Tribunal continued to make this mistake.
Conclusion
12. We are satisfied that the interests of justice require that the decision of First-tier Judge Bowler be set aside. This is on the basis a procedural error arose of such consequence as to amount to a material error of law. We extract the public law principal from Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) that ultimately the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? It appears that the appellant intended to be present at her appeal. It cannot be said her absence would have made no difference to the outcome. The issue in the appeal was genuineness of her marriage. It is apparent from paragraph 33 of the decision that the judge drew an adverse inference from her absence and that of any supporting witnesses.
Decision
A material error of law in the decision of First-tier Judge Bowler dismissing the appellant's appeal has been established. The matter is remitted to the First-tier Tribunal for a de novo hearing.

Francis J Farrelly
Deputy Upper Tribunal Judge Date: 15 January 2018

Directions.

1. The appeal is remitted for a de novo hearing before any First-tier Tribunal judge except First tier Judge Bowler.

2. The parties should check what decisions are being appealed and any outstanding appeals should be linked for hearing together.

3. The appellant's representatives should advise if an interpreter is required.

4. We have the original bundle amounting to 53 pages from the appellant's representative. It is for them to consider any need for updating; bearing in mind the circumstances at the date of hearing will be relevant.

5. The respondent's original bundle contains a summary of the home visit by Home Office officials. If the respondent is relying upon any further evidence in relation to the marriage this should be provided to the appellant's representatives immediately.

6. It is anticipated the hearing should last no more than one and a full half hours.