Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00086/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 25 April 2017
On 27 April 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mr KRUPESHKUMAR MUKESHBHAI PATEL
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Mold, counsel
(instructed by MT UK Solicitors)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant appealed with permission granted by Upper Tribunal Judge Kamara on 8 March 2017 against the determination of First-tier Tribunal Judge Feeney who had dismissed the Appellant’s appeal against the Secretary of State’s decision dated 1 December 2014 in a determination promulgated on 1 March 2016.

2. The Appellant is a national of India, 29 years of age, who had applied for further leave to remain as a Tier 4 (General) Student Migrant. Such leave had been granted to 15 December 2014, but on 23 April 2014 his sponsor’s licence was revoked. The Appellant was granted 60 days to find a new sponsor. His leave was curtailed to expire on 2 September 2014. The Appellant applied for further leave to remain on 1 September 2014, which was refused because the Appellant had not obtained a CAS, as he admitted. This meant that his funds could not be assessed. The reasons for refusal letter conveying the decision to refuse to vary the Appellant’s existing leave incorporated a second decision to remove the Respondent by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006. The appeal to the First-tier Tribunal was under the previous provisions of the Nationality and Immigration Act 2002.

3. When the appeal was called on for hearing before Judge Feeney, there was no appearance by the Appellant nor his representative. Having satisfied herself that notice of the time, date and place of the hearing had been duly served on the Appellant and his representatives, the judge decided that the hearing should proceed in the Appellant’s absence and that his appeal could be fairly and justly determined in such absence: see [4] of the determination.

4. In fact the judge’s record of proceedings noted that the Appellant’s solicitors had written to the tribunal to say that he would not be attending because he was unwell (see letter dated 8 February 2016). An adjournment had been refused [on 8 February 2016]. There was no attendance. The record of proceedings went on to note that although the medical information on file showed diarrhoea and lower back pain, there was no letter from a GP to say that the Appellant could not attend. A GP’s letter along those lines had been provided on a similar occasion [on 10 July 2015]. The record of proceedings thus shows that the judge considered of her own motion whether there was sufficient medical evidence to warrant an adjournment, notwithstanding that it had already been refused.

5. In order to establish the full context, it should also be noted that the tribunal file showed that the appeal had been adjourned previously by Judge IM Scott on 10 July 2015 because, the judge noted, the Appellant had been suffering from severe lower back pain. The medical certificate produced from GP in Wembley was dated 26 June 2015 and addressed “to whom it may concern”. It stated “I have consulted (sic) the above patient for lower backache. He is currently under investigation. I have advised him to rest for 2 weeks. I would very much appreciate your kind consideration.”

6. Pausing here, it is plain that the medical certificate produced was wholly inadequate to form a proper basis for an adjournment on 10 July 2015. It was not clear from the letter that the doctor had been informed that the certificate was required for a tribunal. The letter did not state that the Appellant was unfit to travel and/or unable to attend a short court hearing. In any event, the facts were not in dispute and it may be doubted that the Appellant’s presence was needed at all as his representative was present so that the appeal hearing could have proceed fairly on submissions.

7. The appeal was due to have been heard on 25 November 2015, but that had to be adjourned because of lack of judiciary. The point (obvious to Judge Feeney) was that the Appellant, aged 28 years at the material time, had had 10 months to recover from lower back pain from which he had claimed to be suffering. There was no medical evidence that he could not travel.

8. The Appellant’s representative’s letter dated 8 February 2016 which was before Judge Feeney enclosed a poor copy of a Brent NHS Muscloskeletal (sic) Services Referral Form, consisting of two pages. The only date visible on the first page of the document was 26 June 2015, the date of the earlier inadequate medical certificate produced to Judge IM Scott on 10 July 2015. On page two of the NHS document, the “Date of referral” had been crudely altered in manuscript to “8/2/16” from the typed date of 26 June 2015, still visible below the amendment. This was the only manuscript on the form. The same form also noted that transport for the patient was not required. No evidence was produced to the tribunal of the outcome of the referral made on 26 June 2015. In the past medical history on the same form, a prescription of Hux D3 capsules was recorded as having been issued on 18 June 2015. Hux D3 capusules are a high strength vitamin D3 food supplement. The final copy enclosure sent by the Appellant’s representatives was a prescription dated 8 February 2016 for Dioralyte Oral Powder. That product is described by its manufacturers as “fast and effective” relief from diarrhoea. There was no prescription for any painkillers, and, as already noted, no medical evidence that the Appellant was unfit to travel.

9. Judge Feeney mentioned none of these matters expressly at [4] of her determination, but it is plain from her record of proceedings and the tribunal file that they were all before her and informed her decision to refuse an adjournment.

10. Permission to appeal was refused in the First-tier Tribunal. In the Upper Tribunal, Judge Kamara recorded that the file showed that the Appellant was unwell and had sought an adjournment previously. Judge Kamara granted permission to appeal out of time and considered that it was arguable that the First-tier Tribunal judge erred in not taking this into consideration in proceeding to determine the appeal in the Appellant’s absence.

11. That, it must be said, is plainly unsustainable, as has been demonstrated above. It is particularly unfortunate that permission to appeal out of time was granted in an appeal which had no merit, and where it appeared that the Appellant was seeking to delay the final result. The First-tier Tribunal judge had simply omitted to record facts already well known to the Appellant when she again refused the adjournment of her own motion and decided to proceed in the absence of the Appellant and his representatives.

12. Mr Mold for the Appellant had been poorly briefed and had not seen the letter dated 8 February 2016 nor its enclosures. He ought, of course, to have provided with the originals. Those instructing him had placed him a weak position. He might well have advised differently had he been supplied with the facts. Mr Mold argued that the decision and reasons failed to show that the judge had taken into account the Appellant’s health when refusing the adjournment. He accepted that the medical evidence could have been better and that the Appellant’s representatives should have attended.

13. Those admissions were sufficient in themselves to dispose of the procedural fairness point.

14. The medical evidence was, as has been noted above, not merely inadequate. It was woeful. There was no evidence deserving of any weight that the Appellant was still suffering from any back problems at all. The Brent NHS Muscloskeletal (sic) Services Referral Form had been altered in an obvious attempt to mislead the tribunal. The diarrhoea remedy prescribed on 8 February 2017 should have enabled the Appellant to attend the hearing on 9 February 2017, although as already noted, the Appellant’s personal presence was not needed as the facts were not in dispute and the appeal could have been fairly heard and decided in his absence on submissions.

15. Mr Mold also argued that the judge had been wrong to dismiss the appeal on its merits, because the Appellant had not been given sufficient time to obtain a new CAS. All such issues were considered by Judge Feeney: see [20] to [24] of the decision and reasons. The Appellant had asked the tribunal to give him more time to find a new sponsor but the tribunal had no power to do so in circumstances where (as the judge found) the Respondent had applied her published 6o day policy. The Respondent’s decision was in accordance with the law. The appeal was correctly dismissed on its merits.

16. Mr Tarlow for the Appellant relied on the rule 24 notice dated 17 March 2015 which the Respondent had served indicating that the onwards appeal was opposed.

17. As this determination makes clear, in the tribunal’s view this appeal had no merit and permission to appeal should not have been granted by the Upper Tribunal. While it would have been sensible of Judge Feeney to have reproduced the information set out in her record of proceedings concerning the so called medical evidence, which would have had the benefit of forestalling the misconceived grant of permission to appeal and demonstrated that the fairness of proceeding in the Appellant’s absence had been considered with great care, that was not a material error of law. The Appellant and his representatives had been notified of the refusal of the adjournment application yet failed to attend or to produce additional medical evidence worthy of consideration. Judge Feeney examined the evidence put forward by the Appellant, such as it was, and reached findings which were open to her and which might well have been thought inevitable.

18. The onwards appeal is accordingly dismissed.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged

Signed Dated 26 April 2017

Deputy Upper Tribunal Judge Manuell