IA/02698/2015

• Status of case: Unreported
• Hearing date: 22 Dec 2016
• Promulgation date: 30 Jan 2017
• Publication date: 1 Sep 2021
• Last updated on: 1 Sep 2021

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02698/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 22 December 2016
On 30 January 2017



Before

UPPER TRIBUNAL JUDGE KOPIECZEK


Between

yasir rashid
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: No appearance
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant is a citizen of Pakistan born on 21 May 1982. He arrived in the UK on 9 January 2008 as a Tier 4 Student. He was granted further periods of leave to remain up to and including 27 August 2014. He made an application for further leave to remain which was refused in a decision dated 24 December 2015. The respondent made the decision with reference to paragraph 322(1) of the Immigration Rules on the basis that the application was made for a purpose not covered by the Rules. There was also a decision to remove the appellant pursuant to Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The appellant appealed and his appeal came before First-tier Tribunal Judge Abebrese ("the FtJ") on 12 February 2016. At that hearing the appellant did not attend and as far as the FtJ was aware he had not provided any reasons for his non-attendance. In those circumstances he proceeded in the appellant's absence. He dismissed the appeal under the Immigration Rules and with reference to Article 8 of the ECHR.
3. The appellant applied for permission to appeal which was initially refused and then granted by a Judge of the Upper Tribunal ("UTJ"). The UTJ referred to a fax report which appeared to show that three pages were transmitted to the First-tier Tribunal ("FtT") on 11 February 2016, that is to say the day before the hearing. The UTJ considered that there may have been a procedural mishap through no fault of the FtJ, the mishap being that he was unaware of an application for an adjournment of the hearing.
4. That application for an adjournment was contained in the letter dated 11 February 2016 headed "urgent request for adjournment" and in essence it was to the effect that the appellant had injured his ankle and lumbar spine and had been taken to hospital. The letter states that he was unable to walk by himself and required assistance and was on medication. It said that he was in extreme pain and that it would be extremely difficult for him to attend the hearing. He asked for an adjournment for a few weeks to allow him to get better. That letter was supported by what looks like scanned copies of an x-ray or ultrasound result which, to summarise, appears to support what the appellant said about his accident. There is also a prescription for medication which is not entirely clear but it is dated 11 February 2016. The details of the medication cannot easily be deciphered from the scanned copy.
5. It does seem to me that the FtJ was unaware of the fact that the appellant had asked for an adjournment and had provided supporting evidence in relation to that application. Had the judge been aware of the application for an adjournment and the evidence in support of it, it is probable that he would not have proceeded with the hearing in the appellant's absence.
6. Before indicating my view upon whether the decision of the FtJ needs to be set aside, it is necessary to set out his decision and his recital of the respondent's decision on the application. After having recited the appellant's immigration history the FtJ referred to the appellant's application for leave to remain outside the Immigration Rules. He referred to the appellant as having come to the UK as a student in January 2008. The respondent's decision letter which is referred to in the FtJ's decision refers to a grant of leave outside the Rules being appropriate where there are particularly compelling circumstances. The respondent's decision also referred to the appellant's contention that he had a job offer from a Tier 2 employer and had wished his application to be held over until the first week of October 2014, the application having been made on 27 August 2014.
7. A letter was provided to the appellant on 24 October 2014 requesting that he submit a Tier 2 application with a covering letter outlining that he wished to vary his leave. Instead, so the decision letter states, he sent a letter dated 8 December 2014 requesting that the application be held over again for a period of at least three weeks. The decision letter refers to the appellant having failed to submit a Tier 2 application as requested and the respondent stated that she was unable to hold an application open indefinitely.
8. The decision letter continues to the effect that it was open to the appellant to return to Pakistan and pursue his studies or employment there. If he wished to undertake employment in the UK it was open to him to make an application for entry clearance under Tier 2. The conclusion was that discretion need not or ought not to be exercised in his favour in this case and that his application did not fall for a grant of leave outside the Rules, with reference to paragraph 322(1).
9. Returning then to the FtJ's decision, he correctly set out the burden and standard of proof and referred to the appellant's grounds of appeal which, to summarise, were to the effect that the respondent's decision was not in accordance with Article 8 of the ECHR or in accordance with the Immigration Rules. In the findings section of his decision the FtJ said as follows at [10]:
"The appellant did not provide the Tribunal with a bundle of documents for the purpose of the hearing. The evidence of the appellant consists of his application form and his grounds of appeal, He has not provided any evidence to the Tribunal to support his grounds of appeal. The appellant at Section B of his application form states that he has a job offer from a Tier 2 employer. He states that he is waiting for his degree to be issued to him at the end of September 2014 and once this is issued to him he would submit his Tier 2 application. The appellant's request that the respondents provide him time to submit his Tier 2 application was granted. The appellant wrote to the respondents making a request that his application be held for another three weeks, no application was received by the respondents and they therefore had no option but to proceed with the processing of the application."
10. After referring to submissions on behalf of the respondent to the effect that the appellant had family and ties in Pakistan and would be able to reintegrate, the FtJ concluded that the appellant had not established that he could satisfy paragraph 276ADE of the Rules in relation to his private life because he had not resided in the UK for a period exceeding 20 years. It was also concluded that there were no insurmountable obstacles to the appellant returning to Pakistan, bearing in mind his social and cultural connections to the country where he has resided for most of his life. It was also said that he had gained qualifications in the UK and had placed himself in a better position than when he entered the country. It was further concluded that there were no compelling or compassionate circumstances such as to merit consideration outside the Article 8 Rules.
11. I quote the last sentence of the FtJ's decision at [12] as follows:
"The appellant has provided absolutely no evidence to support his grounds of appeal and furthermore, the Tribunal and the respondents have not heard from him regarding this appeal."
12. That, it seems to me, is precisely the same situation that the Upper Tribunal is in today. There is no further information in any respect whatsoever from the appellant in support of the application that was made to the respondent. No bundle of documents has been provided, and no letter or witness statement setting out his grounds for appealing against the respondent's decision in more detail than appears in the grounds of appeal, which themselves are scant and vague.
13. Because there was a procedural irregularity on the part of the FtJ in proceeding with the hearing in the absence of the appellant, and notwithstanding that the position is no further advanced before me, it is necessary to set aside the FtJ's decision, because the procedural irregularity is a significant one. Accordingly, the decision is set aside.
14. However, I can proceed to re-make the decision immediately because, as I have indicated, there is nothing before me and there was nothing before the FtJ which advanced the appellant's appeal in any respect whatsoever, either in terms of an application outside the Rules and what is said about his wish to submit a Tier 2 application or having obtained employment from a Tier 2 Sponsor, or in terms of Article 8 of the ECHR, whether within or without the Rules.
15. I re-make the decision by dismissing the appeal under the Immigration Rules and under Article 8 of the ECHR.

Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the decision re-made, dismissing the appeal under the Immigration Rules and under Article 8 of the ECHR.



Upper Tribunal Judge Kopieczek 30/01/17