Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09173/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 October 2017
On 20 November 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

md muhibur rahman
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Hussain, Counsel instructed by Hafiz & Haque Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal brought with the permission of Upper Tribunal Judge Bruce against the decision of the First-tier Tribunal dismissing the appellant's appeal against refusal of leave.
2. There is really only one point of any significance; the appellant says that he did not go to the hearing because he did not know about the hearing. If he did not know about the hearing then, in my judgment, there was procedural unfairness and the proper remedy is for the case to be heard again. Of course, I have no way of knowing beyond all doubt, whether or not he knew of the hearing but certain things are quite clear. The Tribunal's records show that notice of hearing was sent to the correct address in November 2016. Something was sent out because the Secretary of State knew about the hearing which indicates strongly that the documents were served as the records show. That of course does not prove that they arrived. There was no legal representative so there was only service directly on the appellant. He then had an address in H--- Road in London. That is the address to which the Tribunal sent the notice of hearing. Not very long after that, the appellant notified the Tribunal of a change of address and he continues to live at this address in W--- Lane so this is not a case of somebody disappearing from the system, rather it is a case of somebody drawing to the attention of the Tribunal their whereabouts.
3. Further, without in any way wishing to encourage him to think that he has a guaranteed success because he does not, the appellant's case is not hopeless and Mr Kotas for the Secretary of State today recognised, without in any way committing anybody to anything, that this is a man who does have something to say on private and family life grounds if on no other grounds.
4. The point of this is that this is not a man who has an obvious incentive to hide.
5. The appellant told me in evidence today that he has spent a lot of money on this appeal and he wanted his money's worth. He did not want to waste it. I accept that evidence. I think it is probable that for some reason the notice that was sent by the Tribunal did not come to his attention. The most likely explanation is that it was one of the surprisingly large number of letters sent out by this Tribunal that appear to get lost. I have to accept his evidence because there is no good reason not to accept it. I am therefore satisfied that the First-tier Tribunal acted in the mistaken belief that the appellant had notice and I therefore find there was procedural irregularity.
6. I set aside the decision of the First-tier Tribunal and as this appellant has not had a hearing at all and that is not in any way his fault, I direct the case be heard again in the First-tier Tribunal. Notice of the new hearing no doubt will be sent out by the First-tier Tribunal in due course but that is a matter for that Tribunal.
Notice of Decision
To the extent indicated above, this appeal is allowed.

Signed

Jonathan Perkins, Upper Tribunal Judge
Dated: 17 November 2017