Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06652/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th March 2017
On 16th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Mohammed Salah Uddin Rashel
(ANONYMITY order not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Tauhid of Hubers Law Solicitors
For the Respondent: Miss Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge C M Phillips of the First-tier Tribunal (the FtT) promulgated on 14th October 2016.
2. The Appellant is a male citizen of Bangladesh who on 8th July 2015 applied for leave to remain in the United Kingdom based upon his family and private life. The basis of the application was the Appellant’s relationship with Claire Gallivan, a British citizen.
3. The application was refused on 16th September 2015 and the Appellant appealed to the FtT. The Appellant did not have legal representation.
4. His appeal was heard on 6th October 2016 in his absence. The Appellant had requested an oral hearing but did not attend. No representative from the Respondent attended the hearing. A telephone call was made to the Respondent who agreed that the appeal should proceed without representation. The Appellant had not submitted a bundle of documents.
5. The judge found that the Tribunal file showed that the Appellant had provided in his Notice of Appeal a different address from the address at which he claimed to be living with the Sponsor. The judge was satisfied that the appeal should proceed in the absence of the Appellant.
6. The judge found that the Appellant had not proved that he and the Sponsor had been living together in a relationship akin to marriage for at least two years prior to the date of application. The judge found that the Appellant had not explained why he had provided an address in his appeal form which was different from the address where he claimed to be living. It was further found that the Appellant had not proved that he met the eligibility requirements of Appendix FM in relation to either the partner or parent route. The Appellant had not discharged the burden of proof in relation to paragraph 276ADE(1)(vi).
7. The judge considered Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention) outside the Immigration Rules and found (paragraph 31) that the Appellant had not established a family or private life that would engage Article 8.
8. In the alternative if the Appellant had established a family or private life, the Respondent’s decision was proportionate.
9. The Appellant applied for permission to appeal to the Upper Tribunal by way of a letter dated 26th October 2016. He explained that he had:
“Been regularly calling the Home Office to find out my hearing date and have not received any letters informing me of a date for hearing. When I called today I was told my hearing date (6th October 2016) already took place and as I didn’t attend the case was dismissed on 19th October 2016.”
10. The Appellant further explained that after speaking “to the Tribunal officer” it was discovered that his address had not been updated, although he had updated this in March 2016, and he attached to his letter an acknowledgment email from the Home Office acknowledging an address update. He pointed out that he had been waiting for more than a year for his hearing. The Appellant asked if he could have a hearing date as soon as possible because the Sponsor is disabled and he needed to be able to support her.
11. Permission to appeal was initially refused. The Appellant thereafter instructed solicitors who submitted a renewed application for permission to appeal.
12. The renewed application contended that the FtT had erred in law by failing to advise the Appellant of the hearing date. The Appellant had not received notification of the hearing date which is why he had not attended the hearing and he had not submitted documentary evidence.
13. It was contended that it was unfair to have a hearing in the Appellant’s absence, and had he received notification of a hearing date he would have submitted documentary evidence, and attended the hearing to give oral evidence.
14. Permission to appeal was granted by Upper Tribunal Judge Kebede in the following terms;
“1. The Appellant, a citizen of Bangladesh, appealed against the Respondent’s decision to refuse his human rights claim. First-tier Tribunal Judge Phillips dismissed the appeal.
2. It is arguable that unfairness has arisen in that the Appellant, as a result of changing address, did not receive the notice of hearing of his appeal and was thus not present and able to provide oral evidence in support of his appeal. Arguably the Appellant’s change of address was also relevant to the merits of his claim, as being the address at which he claimed to reside with the Sponsor.”
15. On 8th February 2017 the Respondent submitted a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008, contending, in summary, that the grounds disclosed no error of law. The onus is on the Appellant to show that he had notified the appropriate parties of a change of address prior to the substantive hearing.
16. Directions were issued making provision for there to be a hearing before the Upper Tribunal to ascertain whether the FtT decision contained an error of law such that it should be set aside.
The Upper Tribunal Hearing
17. Mr Tauhid relied upon rule 26 of the 2014 Tribunal Procedure Rules which requires the FtT to give each party entitled to attend a hearing reasonable notice of the time and place of the hearing. Mr Tauhid’s submission was that although the Appellant had changed his home address, from the address that he had given in his Notice of Appeal, he had also supplied the FtT with his email and telephone number and the FtT should have contacted him. At this point I asked Mr Tauhid if he had any evidence to indicate that the Appellant had given the FtT his telephone number, and he accepted that he did not.
18. Mr Tauhid submitted that the FtT had acted in breach of common law by proceeding in the Appellant’s absence and relied upon the decision in Ridge v Baldwin [1963] UKHL 2.
19. Thirdly it was submitted that the rules of natural justice had been breached by the FtT proceeding in the Appellant’s absence.
20. Mr Tauhid also placed reliance upon rule 32 of the 2014 Tribunal Procedure Rules, on the basis that the Appellant had not received notification of the hearing. However no application had been made pursuant to rule 32.
21. Miss Ahmad submitted that the FtT had complied with the Procedure Rules by sending notification of the hearing date to the last address notified by the Appellant to the FtT. The Appellant had lodged his appeal in September 2015 but had not submitted a bundle of documents. It was contended that the Appellant had failed to contact the FtT to find out the date of hearing. The Appellant must have received the FtT decision, because he had responded to that decision by making an application for permission to appeal.
22. Miss Ahmad accepted that the Appellant had notified the Respondent of a change of address on 15th March 2016. I was asked to find no error of law.
23. By way of response Mr Tauhid submitted that the Appellant had telephoned the Tribunal on more than one occasion for an update in relation to his appeal and he was told to wait for notification. A bundle of documentary evidence would not be served until notification of the hearing date had been given. Mr Tauhid reiterated that it was unfair to decide a case such as this, which he submitted had merit, in the absence of the Appellant, and requested that the FtT decision be set aside.
My Conclusions and Reasons
24. I am satisfied that the Appellant did not have legal representation before the FtT. He submitted his appeal online on 28th September 2015. He provided in the appeal form his address for correspondence and his email address. He did not provide a telephone number.
25. I am satisfied that the Appellant subsequently moved address, and he notified the Respondent of this on 15th March 2016. Unfortunately the Appellant did not notify the FtT, and although his email address remained the same, the FtT sends notice of hearing by post rather than email.
26. I accept that the Appellant did make some telephone calls to the Tribunal enquiring about the progress of his appeal. He refers in his letter of 26th October 2016 to making telephone calls, although he makes reference to telephoning the Home Office. It is however apparent from that letter that on 26th October 2016, he was in fact speaking to a member of Tribunal staff and not the Home Office. I am satisfied that the Appellant did make some telephone calls to the Tribunal enquiring about his appeal, and he was told to wait for notification of hearing. I am also satisfied that the Appellant believed that by notifying the Home Office of his change of address, he would receive a notice of hearing at his new address.
27. I find that it is clear that the Appellant wanted to participate in the appeal proceedings. It is unfortunate that the Respondent was not represented before the FtT, as had there been a representative present, then it may have become apparent that the address which the FtT held on record and to which the notice of hearing had been sent, was not the Appellant’s current address.
28. I accept that the Appellant did not receive notification of the hearing date which is why he did not attend, and why he did not submit documentary evidence. The Appellant must accept some responsibility for this, but in my view there has been a procedural irregularity capable of making a material difference to the outcome or the fairness of proceedings such as to constitute an error of law, although the judge cannot be blamed for this. Had the Appellant received the notice of hearing and attended, he would have had the opportunity of providing evidence to deal with the issues raised by the Respondent in the refusal. I therefore set aside the FtT decision with no findings preserved.
29. I have taken into account paragraph 7.2 of the Senior President’s Practice Statements, and find that because the Appellant has not had an opportunity for his case to be put to and considered by the FtT, it is appropriate to remit this appeal back to the FtT to be decided afresh.
30. The appeal will be heard at the Taylor House hearing centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FtT Judge other than Judge C M Phillips.
Notice of Decision

The decision of the FtT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FtT with no findings of fact preserved.

Anonymity

The FtT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal. I see no need to make an anonymity order.

Signed Date 10th March 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee award is made by the Upper Tribunal. The issue of any fee award will need to be considered by the FtT.

Signed Date 10th March 2017

Deputy Upper Tribunal Judge M A Hall