Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00605/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th December 2016
On 13th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Mrs Alicia Promesse
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Appellant, in person
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
The Appellant appeals with permission against the decision of First-tier Tribunal Judge Eban dismissing the her appeal against the Respondent's decision to refuse an application for leave to remain on the grounds that her removal would not breach the Appellant's human rights. The Appellant appealed against the decision of Judge Eban and was granted permission to appeal by Deputy Upper Tribunal Judge Taylor in the following terms:
"The Appellant states, inter alia, that she did not receive the notice of hearing. The notice of hearing was sent to a hotel address, which has since been amended on the court file in manuscript. No date is given for the alteration. She did have representatives, who wrote to the Tribunal to say that they were no longer acting and that the Appellant would be attending in person.
This is the Appellant's second appeal. She won her first, and attended on that occasion, but it was set aside and remitted to the First-tier Tribunal.
On the face of it there would be no reason at all why she would not attend on this occasion. It is arguable that the judge, through no fault of his own, may have erred in proceeding with the appeal in the absence of the Appellant."
The Respondent provided a Rule 24 reply that was duly considered by all parties before the hearing commenced.
Error of Law
At the close of submissions I indicated that I found there was an error of law such that the decision should be set aside but that my reasons would follow. My reasons for finding an error of law are as follows.
In order to assist Mrs Promesse I asked Mr Tarlow for the Respondent if he would explain the Secretary of State's position as far as possible in the simplest of terms. I am grateful to Mr Tarlow for his assistance to the Tribunal. Mr Tarlow stated that as far as the Secretary of State was concerned if the notice of hearing went to an address where the Appellant was not residing then she could not have been expected to know about the notice of hearing or the hearing itself, and that if her former solicitors had not been legally funded, then there was no obligation upon them to inform the Appellant of the notice of hearing, if they had had it. In response to my questions the Appellant set out the history to this appeal and her changing correspondence addresses in detail for which I am grateful.
The Appellant informed me that she did receive the notice of decision by First-tier Tribunal Judge Eban and when she did so she rang her former legal representatives Apex Solicitors, who said first that they had not received any notice of hearing and were just as surprised as the Appellant that a hearing had come and passed by. The Appellant said that when she attended their offices the solicitors unfortunately found a notice of hearing on their file which they were previously unaware of.
The Appellant confirmed that in respect of her previous address on the court file (namely, the Ashling Tara Hotel in Sutton) that address was indeed where she previously resided for a time. However, she had ceased residing at that address since as long ago as February 2015 and in fact moved address before her previous appeal hearing at the First-tier Tribunal before Judge Manyarara (which was successful but had been set aside by Deputy Upper Tribunal Judge Lewis in January 2016). The Appellant informed me that she had told both Judge Manyarara and Judge Lewis of her new address. However, she had not experienced any difficulty in knowing about or attending those hearings because at that time she had solicitors on the record, previously Fadiga & Co, followed by Apex Solicitors. However, at the time of the hearing before the Upper Tribunal in January 2016 Apex Solicitors came off the record. As far as I can see it must have been at this time that Deputy Upper Tribunal Judge Lewis amended the address for the Appellant on the Tribunal's file, in manuscript, to reflect her present address (at which she still resides): [~].
Thus it is unclear to me why the notice of hearing for the appeal before the First-tier Tribunal and before Judge Eban was sent to the Ashling Tara Hotel. However, this is an unfortunate circumstance for which the Appellant is certainly not to blame. As to the materiality of the Appellant's attendance at the First-tier Tribunal hearing, needless to say it is unfortunate that the various mishaps regarding the Appellant's correspondence address were not known to First-tier Tribunal Judge Eban and thus she is entirely blameless in proceeding in the Appellant's absence. However, the decision itself were it to stand would mean that the Appellant has not had a First-tier Tribunal appeal hearing at which she had the opportunity to attend or present her appeal and there is no reason why she should not have that opportunity. I observe that she has engaged with the Tribunal on every occasion on which she was aware of a hearing and, in particular, she has informed me that there was evidence in relation to her child and in relation to his health and her ongoing presence that she wished to put before the First-tier Tribunal in pursuing her appeal. Thus I do find that there is a material error of law in the decision, of a procedural nature, such that the decision should be set aside and the appeal heard de novo.
Notice of Decision

The appeal to the Upper Tribunal is allowed.

The decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal to be heard by a differently constituted bench.

All further correspondence at present date is to be directed to the Appellant in person. I make clear that she has no legal representative at present and that her address remains at [~] as confirmed by her today.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Saini