Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04819/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 13th October 2016
On 24th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MR JOHN D CRUZE
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr B Singh (Counsel)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS

1. The Appellant is a male, a citizen of Bangladesh, who was born on 18th July 1966. He appealed to the First-tier Tribunal against the decision of the Respondent dated 27th January 2015 refusing his application for a variation of leave to remain, on the basis that the Appellant had been a work permit holder, who had been in employment, in accordance with the terms of his work permit, for the last five years.
2. The Appellant's appeal was heard by First-tier Tribunal Judge C Clapham at Hatton Cross on 18th August 2015. The overriding issue before the judge was as to whether the Appellant had been employed by Kitchen N1 at 8 Caledonia Street in London under the work permit. There had been conflicting evidence. An earlier letter of 6th September 2014 from a Mr Delwar Matin, the managing director of Kitchen N1, had suggested that he was employed in the manner suggested. A later letter of 15th December 2014, which had followed an enquiry from the Respondent Home Office, suggested that he was not. A third letter dated 13th August 2015 suggested that he was indeed so employed, and appeared to agree with the first letter of 6th September 2014.
3. At paragraph 25 of the determination, the judge stated as follows:
"I was told by the Appellant's representative that he had spoken to Mr Matin and in the circumstances it seems to me that the likelihood is that the letter of 13th August 2015 is genuine which means that the letter of 6th September 2014 is genuine and the Appellant was in continuous full-time employment with Mr Matin's company from 18th March 2009 to 18th August 2013" (paragraph 25).
4. The appeal was allowed.
5. The Grounds of Appeal relied upon the president's ruling in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC) that "the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness. ?"
6. The grounds state that the letters from Mr Matin were material to the outcome of the appeal. The Appellant's representative knew that the first and third letters were in dispute, because the second letter, which had been written by Mr Matin following a request for clarification from the Respondent Home Office, gave a contrary view. If the judge were to consider the latest letter, he had to consider it in the context that Mr Matin did not attend the hearing to give evidence, and was not the subject of cross-examination, with respect to the three letters written in his name.
7. At the hearing before me, Mr Mills submitted that the Appellant had applied for indefinite leave to remain on the basis of having spent five years under a work permit, but his working under the terms of the work permit was flatly contradicted in the letter from Mr Delwar Matin of 15th December 2014. He refers to the letter "supposedly signed by me stating continuous employment" and goes on to say that,
"I can confirm the letter was not written by myself or authorised by any current employee of this company as it doesn't have our new logo or correct letterhead format and the signature is not mine and the job title are all incorrect".
Mr Mills also submitted that the third letter of 13th August 2015, was faxed over at 10.25 p.m. on Friday night for a hearing to take place on the following Monday, such that it could not be verified or authenticated, and given that Mr Matin himself did not attend to give evidence, the judge was wrong to have given that letter controlling weight before allowing the appeal.
8. For his part, Mr Singh submitted that, whereas it was the case that the judge had given regard to the statement from Mr Hussain, the Appellant's representative, that he had spoken with Mr Matin, such that this third letter could be treated as genuine, the fact was that it was not of material consequence because if the determination is looked at as a whole, and in the round, it was clear, that the judge took other evidence equally into account, before concluding that the Appellant had indeed been employed for five years under the work permit, such that he was entitled to ILR as he claimed. Second, the Home Office had not been able to demonstrate that they had written to the Appellant to tell him that there had been a curtailment of his leave and the burden of proof lay upon the Home Office. Third, even if the letter had been faxed on the Friday before, it was open to the Presenting Officer at the hearing to either object to its submission, or to apply for an adjournment, such that this letter could be verified, in the same way that it was alleged the letter of 15th December 2014 had been subject to a verification, because it arose as a result of a direct enquiry from the Respondent Home Office. Finally, the judge had been aware that to regard the latest letter to have been concocted would be to suggest that there had been a very elaborate fabrication because it was a letter written to the Appellant's solicitor, and there is no evidence of this.
9. In reply, Mr Mills submitted that the plain fact was that there had been a procedural unfairness in the judge referring to the fact that Mr Hussain, the Appellant's representative had given a statement to the court that he had spoken with Mr Matin, such that the judge felt able to rely upon that statement as being the basis of the veracity of the latest letter from Mr Delwar Matin.
My Consideration of the Appeal
10. I am satisfied, that on the basis of the decision in BW (witness statements by advocates) Afghanistan [2014] 00568, that the decision amounts to an error of law (see Section 12(1) of TCA 2007) such that it should be set aside. This is so for the following reasons.
11. First, it is clear that there was a conflict of evidence before the Tribunal, and all of it coming from documentation written in the name of Mr Delwar Matin, the director of Kitchen N1. As the judge stated (at paragraph 25), he was "faced with three letters from Mr Matin" such that the judge even had to consider whether there had "been a very elaborate fraud on the part of someone" (paragraph 25).
12. In these circumstances the judge resolved the situation by stating,
"I was told by the Appellant's representative that he had spoken to Mr Matin and in the circumstances it seems to me that the likelihood is that the letter of 13th August is genuine".
13. Second, it is equally clear that the judge was also confronted with the situation where he had to say that, "on the face of it the Presenting Officer had a good argument that where leave was curtailed there was then a gap in the Appellant's permission to work", such that the issue needed resolving on the basis of evidence that could be subject to cross-examination, which could not be done given that Mr Matin did not attend to give evidence at the hearing (see paragraph 19).
14. Third, the absence of Mr Matin did clearly present the judge with a problem because he concluded that, "I find Mr Matin's confusion to be rather unfortunate" (paragraph 27). All of this suggested that reliance upon what the representative of the Appellant had said assumed the decision in favour of the Appellant.
15. It is in one sense quite unnecessary to go this far because the purity of the legal system demands that, regardless of whether controlling weight is placed by a decision maker on what the Appellant states, it is simply not consistent with the requirements of procedural fairness, for a representative to turn witness and vouch for the fact that a statement by Mr Matin is genuine quite simply because he had spoken with Mr Matin and had been assured of this fact.
16. I note that Mr Hussain has drawn attention to his Rule 24 response where he states that the grounds are a misrepresentation of the events before Judge Clapham. He states that the First-tier Tribunal
"was expressly told by the Respondent's representative that he could not provide evidence and represent the matter when the First-tier Tribunal Judge enquired as to why the representative did not make any statement to confirm the source of the letter dated 13th August 2015" (see paragraph 4).
17. Mr Hussain, who then represented the Appellant before the First-tier Tribunal Judge, is well-known in the Tribunals and there is no reason to believe that Mr Hussain was not acting with the utmost probity and propriety before Judge Clapham when he appeared on that occasion. It matters not.
18. What matters is that the judge, faced with the statement from Mr Hussain concluded that "in the circumstances it seems to me that the likelihood is that the letter of 13th August 2015 is genuine". In this respect, the judge fell into error.
Remaking the Decision
19. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal to the extent that it is remitted back to the First-tier Tribunal, to be heard by a judge other than Judge C Clapham.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This matter is remitted back to the First-tier Tribunal to be heard by a judge other than Judge C Clapham.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd January 2017