HU/04192/2017

• Status of case: Unreported
• Hearing date: 18 Dec 2018
• Promulgation date: 17 Jan 2019
• Publication date: 12 Feb 2019
• Last updated on: 12 Feb 2019

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04192/2017


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 18th December 2018
On 17th January 2019



Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE


Between

mr mohammed shahjalal
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr T Chowdhury (Counsel)
For the Respondent: Ms A Everett, Home Office Presenting Officer


DECISION AND REASONS
EXTEMPORE JUDGMENT
1. This is an application for permission to appeal which has been granted at the First-tier Tribunal by Judge Birrell on the basis that, as a result of a procedural irregularity, the Appellant did not attend his hearing.
2. Looking at the decision of the First-tier Tribunal dated 4th May 2018 and promulgated on 11th June 2018, it is quite clear that the judge was unaware of that correspondence or the fact that the Appellant was not in the country, and that that was the reason why he was not at the hearing. The evidence in support of the application following the grant of permission establishes that the Appellant had written to the Tribunal on at least one occasion in October 2017, and followed that up by an email in May 2018, to the point that he was out of the country and unable to attend his hearing and requesting that the matter be adjourned to a different date. There is no copy of that correspondence on the court file.
3. Ms Everett has quite properly drawn to my attention that even had the letter been before the judge it would have been open to the Respondent to argue that nonetheless the hearing should have proceeded in his absence. However, given that the letter was not before the judge I cannot be sure that had he seen that correspondence that he would have reached the same conclusion on the basis of any such submission. In those circumstances I am satisfied that through no fault of the judge a procedural irregularity has occurred.
4. I find the Appellant has established that the decision reveals an error of law and, exercising my discretion, I set the decision aside and remit the appeal to the First-tier Tribunal for a de novo hearing.
Notice of Decision

The appeal is allowed.

No anonymity direction is made.

Signed Date 08 January 2019
Deputy Upper Tribunal Judge Davidge



TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award for the following reason, none is requested, and the appellant could have done more.

Signed Date 08 January 2019
Deputy Upper Tribunal Judge Davidge