Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01772/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 12 January 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MD JAKIR HUSSAN SAIMON
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: No appearance
For the respondent: Mr N. Bramble

DECISION & NOTICE OF DECISION
1. The appellant appealed against the respondent's decision dated 11 December 2013 to refuse leave to remain as a Tier 1 (Entrepreneur) Migrant. The application was refused under the general grounds for refusal contained in paragraph 322(1A) of the immigration rules on the ground that a letter and statement from Affin Bank relating to his third party sponsor, Sahad Bin Sultan Al Hussan, had been verified by the bank as not genuine.
2. First-tier Tribunal Judge Turquet dismissed the appeal in a decision promulgated on 03 June 2014. She was satisfied that the Document Verification Report (DVR) produced by the respondent (it is unclear when it was produced) was sufficient evidence to discharge the burden of proof to show that the appellant had submitted a false document in support of the application. The appeal was dismissed with reference to paragraph 322(1A).
3. A First-tier Tribunal Judge refused permission to appeal to the Upper Tribunal in a decision sent on 23 June 2014. An Upper Tribunal Judge refused a renewed application for permission, relying on the same reasons, in a decision sent on 27 August 2014.
4. The appellant filed an application for judicial review of the Upper Tribunal decision. At a rolled up hearing on 28 April 2015 Mr Justice King granted permission, allowed the judicial review and made an order quashing the Upper Tribunal decision. The effect is that a decision relating to the application for permission to appeal to the Upper Tribunal remains outstanding.
5. I can see no evidence on the court file to suggest that a formal order has been made granting permission to appeal. The Tribunal's other records do not indicate that permission has been granted. It is unclear why the Upper Tribunal has not dealt with the matter following the judicial review decision but it appears that copies of Mr Justice King's decision and order were not received by the Upper Tribunal until very recently. As such, instructions were given for the matter to be listed for hearing.
Decision: permission to appeal is granted
6. Further to the decision and order made by Mr Justice King on 28 April 2014, and for the avoidance of doubt, I grant permission to appeal to the Upper Tribunal.
Decision: appeal to be treated as abandoned
7. There was no appearance by or on behalf of the appellant. I was satisfied that the file indicated that a hearing notice was sent to the appellant at his last recorded address and to his last known legal representatives, Universal Solicitors, on 09 December 2016. During the course of the morning the court clerk tried to telephone Universal Solicitors on the telephone number given on their website but was unable to obtain a response. By lunchtime, I was satisfied that no explanation had been provided for the appellant's failure to attend the hearing and that I could proceed to decide the appeal in his absence.
8. Mr Bramble produced several screenshots from the Home Office CID database, which recorded that the appellant was reported to have departed from the UK on 12 August 2015. The records showed that the case was subsequently registered by the Third Country Unit on 29 September 2015. The CID records it as a "Third Country IN Case - Article 34 (Dublin 3)". The notes record that there was no evidence to show that he had applied for international protection or asylum while in the UK or that he was removed by the UK authorities. It was assumed that he had left the country of his own accord before travelling to Ireland.
9. I am satisfied that the combination of the appellant's absence and the CID records shows on the balance of probabilities that it is likely that the appellant left the UK in August 2015. It is reasonable to infer from the entries on the CID records that the respondent received a request from the Irish authorities relating to the Dublin Regulation. The indication is that the appellant is likely to have claimed asylum in Ireland. Given that there is no record of him having ever claimed asylum in the UK it is highly unlikely that he would have been returned here under the Dublin Regulation. The CID records would have recorded a transfer if it had taken place. In contrast, there is no evidence to suggest that the appellant is still in the UK. He did not attend the hearing and there is nothing to suggest that he is continuing to pursue this appeal.
10. The appeal was begun, and determined by the First-tier Tribunal, well before the commencement of the amended appeal provisions introduced through the Immigration Act 2014. Although paragraph 47(2) of Part 4 of Schedule 9 of the 2014 Act makes provision for section 104(4) of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") to be omitted, the effect of the saving provisions outlined in The Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014 preserves the effect of section 104(4) in relation to cases of this type. Section 104(4) provides:
"(4) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom."
11. In light of the above I am satisfied that there is sufficient evidence to show that the appellant has left the UK and that the appeal should be treated as abandoned by operation of the statutory provision contained in section 104(4) of the NIAA 2002, which is a saved provision for the purpose of this particular appeal.

DECISION
Permission to appeal to the Upper Tribunal is granted
The appeal is treated as abandoned by operation of section 104(4) of the NIAA 2002
The Upper Tribunal will take no further action

Signed Date 11 January 2017
Upper Tribunal Judge Canavan