Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08358/2015
HU/08359/2015
HU/08360/2015
HU/08362/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reason Promulgated
On Friday 15 December 2017
On 18 December 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

ENTRY CLEARANCE OFFICER, ABU DHABI

Appellant
and

FAIZA [A]
[B A]
[M H]
[O A]
Respondents

Representation:
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondents: No attendance

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION IN RELATION TO WITHDRAWAL AND DIRECTIONS

Background
1. The Appellant in this appeal is the Secretary of State for the Home Department. For ease of reference though, I refer to the parties as they were before the First-tier Tribunal.
2. The Appellants appeal against the Respondent's decision dated 27 September 2015 to refuse their applications for entry clearance as visitors for a period of fourteen days. The First Appellant is the mother of the Second, Third and Fourth Appellants. The Appellants intended to visit the First Appellant's brother. However, the real purpose of their visit was to participate in the death prayers for the First Appellant's father (the grandfather of the other Appellants) who had sadly passed away in the UK.
3. Their appeals were allowed "on human rights grounds" by First-tier Tribunal Judge Cox in a decision promulgated on 15 July 2016 ("the Decision"). He also purported to dismiss the appeals "under the immigration rules" which provoked a separate application for permission to appeal from the Appellants which was refused by First-tier Tribunal Judge Kimnell. As Judge Kimnell rightly pointed out, Judge Cox had no jurisdiction to either allow or dismiss the appeals under the Rules as these are post-Immigration Act 2014 appeals. Insofar as the Judge purported to decide that issue therefore the Decision is a nullity. The Appellants' application for permission to appeal has (rightly) not been renewed to this Tribunal.
4. The Respondent also sought permission to appeal the Decision. She did so on essentially four grounds. First, she asserted that the Tribunal had no jurisdiction to entertain the appeals as there was no human rights claim and no refusal of one by the Respondent. Second, she asserted that there is no family life between the Appellants and the sponsor (First Appellant's brother) relying on Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Third, she asserted that there was a factual distinction to be drawn between these cases and the case of Abbasi and another (visits - bereavement - Article 8) [2015] UKUT 00463 (IAC) ("Abbasi") because it is asserted that the person who had passed away lived in Pakistan and not the UK. Finally, it is asserted that there is an inconsistency between the Judge's finding at [29] of the Decision that the Appellants meet the Rules and [34] of the Decision where it is asserted that they do not.
5. Permission to appeal was granted by First-tier Tribunal Judge Kimnell on 30 November 2016 in the following terms so far as relevant:-
"?The Judge found at paragraph 29 of the decision that the immigration rules had been met and at paragraph 34 that the rules had not been met. The extent to which the rules were met is important to any human rights argument, and since incompatible conclusions are recorded the error is capable of making a difference to the result."
6. The appeals thereafter came before DUTJ D E Taylor sitting in Bradford on 2 May 2017. The Appellants were not represented at that hearing. That hearing followed an earlier appeal hearing before UTJ Bruce at which the Appellants were not represented either. In her decision promulgated on 11 May 2017, Judge Taylor accepted the second of the Respondent's grounds. She also accepted the third of the grounds. In relation to the fourth ground, she rejected the assertion that there is a discrepancy in the Decision and concluded that the Judge had made a typographical error only at [34] of the Decision. The Judge had therefore clearly concluded that the Appellants do meet the Rules as visitors.
7. However, because she concluded that Abbasi did not apply on the facts, premised on the assumption that the person who had died lived in Pakistan and not the UK, she found an error of law, set aside the Decision and re-made the Decision dismissing the Appellants' appeals.
8. By applications received on 23 May 2017, the Appellants sought permission to appeal Judge Taylor's decision. They did so on the basis that Judge Taylor had been misled by the Respondent's grounds in thinking that the person who had died lived in Pakistan and not the UK. The Appellants pointed out that the person who had died was the First Appellant's father (who lived in the UK) and not her husband (who remains in Pakistan).
9. Following those applications, this Tribunal gave notice on 29 September 2017 of its intention to set aside Judge Taylor's decision under Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The parties were given the opportunity to make submissions. The only representations were a request by the Appellants for a hearing. Accordingly, by a decision dated 30 October 2017, UTJ Kebede set aside Judge Taylor's decision.
10. The appeals came before me to determine afresh whether there is a material error of law in the Decision. However, at the outset of the hearing, Mr Wilding handed in a letter from Mr Jarvis, Senior Home Office Presenting Officer dated 8 March 2017 which had not reached the Tribunal's files. He also indicated that the Respondent had not received Judge Kebede's decision which explained the lack of any submissions in response.
11. The letter dated 8 March 2017 reads as follows:-
"The ECO writes in respect of the ECO's appeal which was adjourned partly for the reason that the Sponsor and instructed representatives had not been served the notice of the error of law hearing.
This SPO indicated to UTJ Bruce that the ECO would in the meantime consider the legal position in respect of the Grounds of Appeal and notify the UT of any position taken in advance of the rearranged hearing.
The ECO therefore asks that the UT treat this letter as notification of the decision to withdraw the ECO's appeal against the decision of the FtT and further asks that the UT consent to such an action in line with Rule 17(2) of the UT Procedure Rules."
12. Mr Wilding indicated that this letter was not sent to the Appellants as the Respondent does not have an address other than addresses in Rawalpindi. That no doubt explains why the Appellants sought to appeal Judge Taylor's decision.
13. Paragraph 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides for a party to withdraw its case before the Upper Tribunal only with the consent of the Tribunal. If the Tribunal does so consent this would amount to a final disposal of the appeal before the Upper Tribunal. The effect of the withdrawal by the Respondent of her appeal to this Tribunal is that the Decision (of FTTJ Cox) in the Appellants' favour would be maintained.
14. Subject to consideration being given to any request received from either party to the contrary by 4pm on Friday 19 January 2018, the Upper Tribunal proposes to consent to the Respondent withdrawing her case before this Tribunal with the effect that the Decision of the First-tier Tribunal is upheld. I have allowed a longer than usual period of time as the Appellants are resident in Pakistan.

Signed Dated: 15 December 2017
Upper Tribunal Judge Smith