Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05755/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 July 2016
On 02 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR HARJEET SINGH
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Mr Z Awan, Legal Representative of Mayfair Solicitors

DECISION AND REASONS
1. The appellant in this case is the Secretary of State and the respondent is Mr Singh. However for the purposes of this decision and reasons, I shall refer to the parties as they were before the First-tier Tribunal, where Mr Singh was the appellant.
2. The appellant is a citizen of India. He was born on 28 January 1991. The respondent in a decision dated 17 November 2014 refused the appellant's application for leave to remain on private life grounds (in order to allow the appellant to enrol on a new academic course). The application was refused by the respondent as the respondent was not satisfied that the appellant met the requirements of paragraph 276ADE of the Immigration Rules and that there were no grounds for allowing his appeal under Article 8 outside of the Rules.
3. The appellant's application was refused by the respondent on 28 January 2015 with no right of appeal as the appellant did not have leave to remain at the time of his application.
4. The appellant appealed and the appeal came before Judge of the First-tier Tribunal A Kelly on 14 January 2016. In a decision promulgated on 21 January 2016 Judge A Kelly at paragraph 7 of the decision, dismissed the appeal for want of jurisdiction. However at paragraph 8 under the "notice of decision" Judge A Kelly stated that: "The appeal is allowed".
5. The Secretary of State appeals with permission. Although the Secretary of State asked that the decision of the First-tier Tribunal Judge be amended pursuant to the Slip Rule, Rule 31 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, it was conceded before me, and agreed by both parties, that the "Slip Rule" cannot be used to reverse the effect of a decision (Katsonga ("Slip Rule;" FTT's General Powers) [2016] UKUT 00228 (IAC) applied).
6. It was also not disputed before me that the judge clearly erred in making a decision at paragraph 8 to allow the appeal when all of the preceding paragraphs indicated that the appeal was dismissed for want of jurisdiction.
7. As I indicated at the hearing, I am satisfied that this is the case and that such an error is material given that it purports to allow an appeal where the judge clearly found that there was no right of appeal and that the appeal would not succeed in the alternative.
8. I heard submissions from both parties in relation to re-making the decision. Mr Awan essentially re-made the submissions which had been made before Judge A Kelly. In particular it was Mr Awan's renewed submission that the respondent had failed to properly serve the notice of curtailment upon the appellant and therefore the decision to curtail his leave was unfair and otherwise not in accordance with the law. It was his submission that it is the Secretary of State's policy to serve decisions on a residential address but if this is not possible then decisions will be served by email.
9. It is clear in this case that the appellant did not have a right of appeal before the First-tier Tribunal. The appellant made his application on 17 November 2014. His leave was curtailed on 24 July 2014 by the respondent, following the revocation of his college's licence. His leave was curtailed to 22 September 2014. As a result the decision that the appellant sought to appeal is not covered by Section 82 of the Nationality, Immigration and Asylum Act 2002. I am satisfied that this is the case.
10. Although Mr Awan sought to argue that the respondent failed to properly serve the notice of curtailment I rely on the findings of fact of Judge A Kelly at paragraph 4 of his decision that the curtailment notice was served on the appellant by email on 24 July 2014 and Judge Kelly noted that the service of a notice of curtailment by email is one of the methods of service detailed in the Immigration (Leave to Enter and Remain) (Amendment) Order 2013.
11. Judge A Kelly did not accept Mr Awan's argument that the notice should have been served on the appellant's postal address under the respondent's own policy and that given that the respondent was in possession of the appellant's postal address the respondent failed to follow her own policy and the curtailment was therefore not in accordance with the law. Again, Judge A Kelly rejected this argument and Judge A Kelly found as a matter of fact that the appellant did receive the curtailment notice and therefore no unfairness resulted. It is of note that the judge had before him evidence of an email sent by the appellant to the respondent in which he gave his email address: [ - ]@yahoo.com. This was sent on 2 June 2014 and it was to this address that the curtailment notice was sent.
12. Judge Kelly did not find the appellant credible in his evidence that he did not send the email of 2 June 2014 to the respondent and did not provide the email address in question; this email was recorded on the respondent's database. Judge Kelly simply did not find the appellant's evidence credible and gave adequate reasons for not doing so. I preserve those findings of fact.
13. In the alternative the judge found that if he did have jurisdiction the appeal would have failed. The judge found that the appellant would have been aware that his college's licence had been revoked as he was aware of this fact when he wrote to the respondent on 13 November 2014 and the judge found that it was not unreasonable of the respondent to serve the curtailment by email in circumstances where the appellant was no longer studying and it could therefore not be assumed that he was definitely living at the address he had given previously.
14. As I indicated at the hearing I preserve Judge Kelly's findings of fact in relation to Mr Singh's case. There was no challenge to those reasons in the grounds of appeal and nor was there any cross-appeal. Even if there were, for the reasons set out above those findings disclose no material error of law. On the basis of those findings I dismiss the appellant's appeal.
Notice of Decision
The appeal by the Secretary of State is allowed. The decision of Judge Kelly is set aside, although all findings of fact are preserved. I re-make the decision, dismissing Mr Harjeet Singh's appeal for want of jurisdiction.
No anonymity direction was sought or made.

Signed Date: 29 July 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
The appeal of Mr Singh is dismissed and therefore no fee award is made.

Signed Date: 29 July 2016

Deputy Upper Tribunal Judge Hutchinson