Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15863/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25 January 2017
On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

SUNIL PARKASHBHAI BARIA
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bellara (for JJ Law Chambers)
For the Respondent: Mr C Avery (Presenting Officer)

DECISION AND REASONS

1. This is the appeal of Sunil Parkasbhai Baria, a citizen of India born 2 July 1978, against the decision of the First-tier Tribunal of 15 September 2016 dismissing his appeal against the Respondent's decision of 23 October 2014 to refuse his application for further leave on human rights grounds.

2. The First-tier Tribunal determined the appeal without a hearing on the basis that such was the intention of the parties, noting that the deadline for the provision of further information from the Appellant had passed on 16 August 2016, none being forthcoming. On the available material, the Appellant had not answered the Respondent's allegations as to his character and conduct and had put no evidence forward regarding the situation of his British citizen wife and child here. On the available material, the public interest in securing the country's economic well-being via immigration control trumped any private and family life interests.

3. Grounds of appeal argued that an oral hearing was sought on 11 August 2016 via letter to the First-tier Tribunal Immigration and Asylum Chamber in Manchester, and seeking details of the appropriate fee arrangements. The decision had not properly applied the burden of proof which rested on the Secretary of State as to whether or not she had shown that the Appellant had been dishonest.

4. Permission to appeal was granted by the First-tier Tribunal on 15 December 2016 on the grounds that an oral hearing had in fact been sought given the correspondence on file.

Findings and reasons

5. Before me the representatives were agreed that, given that the letter referenced by the Judge granting permission was indeed on file, the hearing below was tarnished by serious procedural unfairness. The Appellant had not provided further material to support his case, being under the impression that he was awaiting a hearing notice, and so the inadequacies in the case as perceived by the First-tier Tribunal were not in fact based on an assessment of all that he wished have put forward.

6. A fundamental procedural failing of this kind warrants a full re-assessment of the appeal, which is accordingly allowed to the extent that it is remitted to the First-tier Tribunal for hearing afresh.

Decision

7. The appeal is remitted to the First-tier Tribunal for hearing afresh. There is a request on file for the matter to be listed in London and I accordingly make a direction to such effect.

Signed Date 13 February 2017

Deputy Upper Tribunal Judge Symes