Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01341/2016

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 16 January 2017
On 19 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

GANGADEEP SINGH
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Mr S Bellara, Counsel
For the respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. In a decision dated 9 August 2016 the First-tier Tribunal dismissed the appellant's appeal against a decision dated 26 January 2016 to refuse him leave as a Tier 1 (Entrepreneur) Migrant. Although the First-tier Tribunal did not acknowledge it, both representatives before me agreed that the appeal was on human rights grounds only.

2. The grounds of appeal can be succinctly stated: the appellant complains that in proceeding to consider his case on the papers, when he made it clear that he wished for it to be determined at an oral hearing, the First-tier Tribunal has acted unfairly.

3. The relevant chronology can be summarised as follows: on 9 May 2016 the First-tier Tribunal sent out a hearing notice informing the appellant that his appeal would be considered on the papers and he had until 6 June 2016 to provide any further evidence and submissions he wished to rely upon; the appellant claims that in a fax dated 27 May 2016 he requested an oral hearing; it appears that although his solicitors received a confirmation that the fax was sent to the First-tier Tribunal, it was not received; the First-tier Tribunal did receive a further letter dated 8 July 2016 referring to the fax and re-requesting an oral hearing with an undertaking to pay the relevant fee; on 18 July 2016 the First-tier Tribunal responded that it was unable to 'action' the request to change hearing type as the appeal had already been sent to a judge on 14 July 2016.

4. The First-tier Tribunal did not consider the appeal on the papers until 2 August 2016 and the decision was promulgated on 9 August 2016.

5. Mr Singh did not 'strongly oppose' the appeal and accepted that there seems to have been a degree of confusion and misunderstanding which led to the refusal of an oral hearing.

6. I must decide whether there was unfairness in all the circumstances, not simply whether the First-tier Tribunal acted reasonably - see Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC). I entirely accept that the judge proceeded to determine the appeal without the knowledge that the appellant wished to have an oral hearing. The judge therefore had no explanation for the lack of an appellant's bundle or evidence in support of the appeal (para 7). The judge proceeded reasonably on the basis of the information available. Nonetheless there has been procedural unfairness. The appellant's solicitors requested an oral hearing on two occasions. The first request was not received. The second request was made before the judge was provided with the papers on 14 July 2016 but in any event before the judge considered the appeal. It is difficult to see why the request could not be 'actioned' in these circumstances. A request for an oral hearing must always be considered carefully. There has been an absence of care in the consideration of the request in this case. The appellant was entitled to an oral hearing upon payment of the appropriate fee, and there has been a degree of confusion that has led to unfairness.

7. I observed at the hearing that the merits of the Article 8 appeal seem to be weak. Mr Bellara acknowledged there were difficulties. The issue however is one of fairness. Once there has been unfairness, the error of law is a material one - see MM v SSHD [2014] UKUT 105 at [14] to [18]. The unfairness has infected the First-tier Tribunal decision such that it can be said to contain a material error of law.

8. Both representatives agreed that the decision should be remade by the First-tier Tribunal. I have had regard to para 7.2 of the relevant Senior President's Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.
Decision
9. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.
10. The appeal shall be remade by First-tier Tribunal de novo.
Directions
(1) The appeal shall be reheard de novo by the First-tier Tribunal sitting at Hatton Cross (TE: 1.5 hrs) on the first date available.
(2) Within 14 days of the sending of this decision the appellant shall file and serve a skeleton argument that specifically outlines how his appeal can be successful on Article 8 grounds in light of the applicable current legal framework, including the provision that little weight can be attached to the private life established when his leave in the UK has been precarious.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
17 January 2017