Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02063/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 December 2016
On 9 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

Mr ANKIT SHAH
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr L Lourdes, Counsel
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who is a citizen of India born on 19 July 1987, applied for leave to remain in the UK as a Tier 4 (General) Student.
2. On 25 April 2016 his application was refused.
3. On 29 April 2016 he lodged an appeal with the First-tier Tribunal where he opted, and paid the fee, for his case to be determined on the papers without an oral hearing.
4. On 21 June 2016 the appellant was sent a letter from the Tribunal confirming his appeal would be on the papers without a hearing and giving him a deadline of 19 July 2016 to submit written evidence.
5. On 26 June 2016 the appellant wrote to the Tribunal to request an oral hearing. In his letter he undertook to pay the additional fee and stated that he would now wait for the Tribunal's response. The letter was sent by fax (with transmission report retained as evidence) and correctly addressed.
6. On 20 July 2016 the matter came before First-tier Tribunal Judge Row who decided the appeal solely on the papers. At paragraph 7 of his decision Judge Row stated that neither party had requested an oral hearing.
7. The grounds of appeal argue that it was unfair for the hearing to proceed on the papers when an oral hearing had been requested.
8. Before me, Mr Walker accepted that if the letter of 26 June 2016 had been dealt with properly, the appeal would have been relisted for an oral hearing. He noted that the appellant had informed the Tribunal soon after the appeal was lodged. Mr Walker's view was that the appropriate course of action, given that the issue was one of fairness, would be for the matter to be remitted to the First-tier Tribunal. Mr Lourdes, on behalf of the appellant, agreed with Mr Walker.
9. I agree with the parties that this is a case of procedural unfairness arising from an administrative error. The appellant's letter of 26 June 2016 was sent less than a month after he lodged the appeal and unambiguously requested an oral hearing. It was reasonable for the appellant to wait for a response and understandable that he did not submit evidence for a decision on the papers by the stipulated deadline of 19 July 2016 whilst he was waiting for a response to his letter of 26 June 2016.
10. The consequence of the administrative error in not responding to the appellant's letter of 26 June 2016 or addressing the request therein was both that:
(a) the appeal was decided on the papers when the appellant wanted it decided following an oral hearing, and
(b) the decision on the papers was made without the benefit of evidence the appellant would have submitted had he known that the case was proceeding without a hearing, notwithstanding his request for a hearing.
11. In these circumstances I am satisfied that procedural unfairness has given rise to an error of law. In finding an error of law no criticism is made of Judge Row who was clearly not aware of the letter of 26 June 2016.
12. Having regard to Section 7.2(a) of the President's Practice Statement, I am in agreement with both parties that the appeal should be remitted to the First-tier Tribunal.

Decision

A. The decision of the First-tier Tribunal contains a material error of law such that it should be set aside in its entirety and the appeal heard afresh.

B. The appeal is remitted to the First-tier Tribunal for an oral hearing before a judge other than First tier Tribunal Judge Row.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 6 January 2017