Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00549/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Mr Shadaab Jamil
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Muquit, Counsel, instructed by Farani Javid Taylor Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against a decision of First-tier Tribunal Judge Keith (the judge), promulgated on 26 September 2016, in which he dismissed the Appellant’s appeal against the decision of the Respondent, dated 10 December 2014 (reference is made in the papers to the decision being made on 18 November, but that is an error).
2. The Respondent’s decision followed an application made by the Appellant and his business partner, Mr Tutul, on 21 January 2013 for further leave to remain in the United Kingdom as Tier 1 Entrepreneurs.
3. This appeal has a somewhat unfortunate history. Following the Appellant’s application, the Respondent made an initial negative decision in 2013. This was appealed. By a decision promulgated on 14 April 2014, First-tier Tribunal Judge Vaudin d’Imecourt concluded that the Respondent’s refusal was not in accordance with the law and he allowed the appeal to this limited extent. The Respondent subsequently made a fresh decision (that which is now under appeal), but did not appear to have paid heed to the findings of Judge Vaudin d’Imecourt. The Respondent’s fresh decision to refuse the applications was appealed. The appeals of the Appellant and Mr Tutul were heard together by First-tier Tribunal Judge Lawrence, who dismissed them by a decision promulgated on 15 June 2015. Permission to appeal was successfully sought and by a decision promulgated on 22 February 2016, Deputy Upper Tribunal Judge Symes found that Judge Lawrence had materially erred in law. The appeal was remitted back to the First-tier Tribunal for a rehearing with clear direction as to what the live issues were (see paragraph 13 of the Upper Tribunal’s decision).

The judge’s decision
4. The appeals of the Appellant and Mr Tutul came before the judge on 31 August 2016. Neither the Appellants nor their legal representative (both having the same solicitors) attended the hearing. At paragraph 6 the judge notes this non-attendance and states that there was no explanation for this. He states that he had considered Rules 2 and 28(b) of the First-tier Tribunal Procedure Rules. He concluded that it was fair and in the interests of justice to proceed in the Appellants’ absence.
5. The judge goes on to consider the evidence before him and he concludes that neither Appellant could satisfy the requirements of the relevant Immigration Rules, nor could they succeed on human rights grounds.

The grounds of appeal and grant of permission
6. The grounds of appeal are concise. They assert that neither Appellant nor their representatives received the notice of hearing in relation to 31 August 2016. Appended to the grounds were witness statements from the Appellants and their solicitor in support of the assertions.
7. Permission was granted by First-tier Tribunal Judge Grant-Hutchison on 27 January 2017.

The hearing before me
8. At the outset it was confirmed by Mr Tufan that Mr Tutul had withdrawn his application for permission to appeal to the Upper Tribunal on the basis that he had been granted indefinite leave to remain by the Respondent.
9. On behalf of the Appellant, Mr Muquit relied on the witness statements from his client and the caseworker at the solicitors (these are contained in the Appellant’s latest bundle at pages 33 to 36). He submitted that there had been no receipt of the notice of hearing and therefore there had been procedural unfairness in the judge’s decision to proceed. The procedural unfairness was material because there was a plausible explanation, supported by evidence, as to compliance with the Tier 1 Entrepreneur Rules.
10. Mr Tufan did not dispute the Appellant’s or the solicitors’ evidence and both representatives accepted that if there was a material error of law this appeal should be remitted to the First-tier Tribunal (once again).

Decision on error of law
11. Having regard to the evidence before me I accept that neither the Appellant nor his solicitors in fact received the notice of hearing in respect of 31 August 2016.
12. I have located in Mr Tutul’s file a notice of hearing that appears to have been sent out both to him and to the solicitors by second-class post on 18 May 2016.
13. However, there is clear evidence from the Appellant, his business partner and the solicitors that this notice was never received. This evidence had not been challenged by Mr Tufan. I have no reason to doubt it. I also note that this Appellant has pursued his case by way of attendance at hearings on a number of occasions prior to 31 August 2016. He had been to at least three hearings prior to this date, and in my view this further supports his contention that he would have attended on 31 August 2016 if indeed he had received the notice of hearing.
14. In light of this, the judge’s decision to proceed in the Appellant’s absence was procedurally unfair. Was it materially unfair? I conclude that it was. I accept Mr Muquit’s submission that there is on the face of it a plausible case on the Appellant’s part that he could in fact meet the relevant Rules as regards his Tier 1 Entrepreneur application. There may also have been a meritorious Article 8 claim.
15. Thus the decision of the judge must be set aside.

Disposal
16. This appeal must, unfortunately, be remitted to the First-tier Tribunal. The Appellant had been deprived of a fair hearing, indeed, of any hearing at all, and it is only right that he has the opportunity to make his case once more before the First-tier Tribunal and to preserve a second-tier appeal to the Upper Tribunal if it should come to that.

Notice of Decision
The decision of the First-tier Tribunal was made in error of law.
I therefore set it aside.
This appeal is remitted to the First-tier Tribunal.

No anonymity direction is made.

Directions to the First-tier Tribunal
1. The remitted hearing shall be a complete rehearing of the appeal with no findings of fact preserved from the decision of Judge Keith;
2. In deciding the remitted appeal the attention of the First-tier Tribunal is specifically drawn to paragraph 13 of the decision of Deputy Upper Tribunal Judge Symes in respect of the relevant issues to be determined;
3. In addition Article 8 remains a live issue.

Directions to the Parties
1. Both parties shall comply with any further directions issued by the First-tier Tribunal.

Directions for Listing
1. The appeal is remitted to the First-tier Tribunal;
2. It shall be heard at the Hatton Cross hearing centre on a date to be fixed by that hearing centre;
3. The remitted hearing shall not be heard by First-tier Tribunal Judge Keith;
4. Time estimate for the remitted hearing will be two hours;
5. No interpreter is required.

Signed Date: 20 March 2017

Deputy Upper Tribunal Judge Norton-Taylor