Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/10768/2018
HU/10730/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing
On 1 August 2019
On 3 July 2019

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

mr mOhamAd fuawad bhaiji
mrs aysha bhaiji
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr D Bazini, Counsel instructed by A Y & J Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are husband and wife. The second appellant is a dependant of the first appellant. They appealed against a decision of the respondent refusing the first appellant to remain as a Tier 1 (General) Migrant and the application of his wife to remain as his dependant. The basis of the refusal was the respondent's belief that the first appellant had lied in his income tax returns.
2. The appeal was dismissed by First-tier Tribunal Rhys-Davies in a decision promulgated on 27 December 2018 and the appellants appeal with leave to the Upper Tribunal. Following a hearing at Field House on 21 March 2019, in a decision and reasons promulgated on 4 April 2019 Deputy Upper Tribunal Judge Shaerf found for the reasons that he gave, that the decision of the First-tier Tribunal had contained material errors of law such that it had to be remade. However, rather than remit the decision back to the First-tier Tribunal, and (so it was later found) without having any detailed discussion with the parties as to the course that should then be followed in light of his finding of an error of law, and without hearing further argument or further evidence Judge Shaerf then went on to remake the decision himself again dismissing the appeal.
3. Subsequently this decision was set aside by Upper Tribunal Judge Lindsley in a decision dated 7 May 2019 in accordance with Rule 43(2)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which provides that a decision which disposes of proceedings (such as this decision) may be set aside if the Upper Tribunal considers it is in the interest of justice to do so and (among other reasons which would be sufficient to allow this Tribunal to set aside the decision) "there has been some other procedural irregularity in the proceedings". Judge Lindsley found that the procedural irregularity was
"due to the matter being remade without the parties having the opportunity to make submissions where there was a finding that there was a material error of law with respect to adverse credibility findings regarding the appellants, and where it was not clear as to the extent of the parties' agreement that the substantive appeal could be dealt with without further submissions if such an error of law was found".
4. In other words, the position now was that an error of law having been found, it was incumbent on this Tribunal to move on to hear submissions on behalf of both parties as to what course should then be followed with regard to the remaking of the decision.
5. Although in paragraph 3 of her decision, Judge Lindsley directed that "the remaking of the hearing will be relisted on the first available date", both parties were in agreement that the appropriate course to follow was for this Tribunal to hear submissions as to the course of the remaking hearing and to reach a decision as to how this appeal should now proceed.
6. It is not necessary to go into any detail as to the issues in this case, because it is sufficient and it is common ground that one of the main if not the main issue is as to whether the first appellant was indeed dishonest as claimed or whether he has an honest explanation for why it was that his income was under-declared in the year in question. Apparently, his explanation is that he believed that his accountant had submitted an honest return (in accordance with the instructions which the first appellant had given him) and had given him the funds with which to pay the tax that was due but that the accountant had instead submitted a reduced and dishonest return on the first appellant's behalf and retained the balance himself. Clearly this and other issues will have to be determined in due course and it is common ground now between the parties that there will have to be a rehearing of this appeal and that this will involve witness evidence which will go to this and other issues. On behalf of the appellants, Mr Bazini submitted that given that the issues will have to be heard afresh (which is accepted on behalf of the respondent) and this will in effect necessitate a completely fresh hearing it will be appropriate for this appeal to be remitted back to the First-tier Tribunal so that the appellant's appeal rights can be maintained.
7. In the circumstances of this case, this Tribunal agrees and will so direct. Accordingly, I make the following decision:
Decision

This Tribunal upholds (and remakes) the decision of Deputy Upper Tribunal Judge Shaerf promulgated on 4 April 2019 that there was a material error of law in the decision of First-tier Tribunal Judge Davies, and directs that the appeal be remitted to the First-tier Tribunal sitting at Hatton Cross to be reheard by any judge other than Judges Shaerf or Davies. The rehearing will be a de novo hearing, with no findings of fact retained.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 25 July 2019