Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/06145/2015
ia/06153/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th July 2016
On 5th August 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Nesrine [E] (first appellant)
[N S] (second appellant)
(aNONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Claire, Imperium Group Immigration Specialists
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants, mother and daughter, appeal, with permission, against a decision of First-tier Tribunal Judge Farmer promulgated on 8th December 2015, which dismissed their appeals under paragraph 276ADE and Appendix FM and on human rights grounds. The appellants are citizens of Egypt born on [ ] 1978 and [ ] 2009 respectively and applied for leave to remain in the United Kingdom under paragraph 276ADE Appendix FM and outside the Immigration Rules. On 5th February 2015 the Secretary of State having considered the appellants' case refused the application and made directions for their removal. The appellants appealed.
2. The appellants' hearing was listed for 7th December 2015 and it is asserted by the appellants that on the day of the hearing they travelled to the representative's office so they could travel together to the hearing centre but the representative was taken ill which is a fact accepted by the judge in paragraph 3 of the decision. An adjournment request was made in the interests of justice and fairness and it was made clear that the appellants at that time were present at the representative's office. The judge refused the adjournment request and he went on to consider the case and make the decision to refuse the appeals.
3. I have heard from Mr Tufan who submitted that in fact the decision to refuse to adjourn was not material; the judge considered the correct test of fairness and he considered whether he could address the issues in the absence of the appellant and the representative. The judge found at paragraph 3 that the issues in this case were relatively straightforward and he considered the statements, documents and skeleton argument.
4. I have been referred by Mr Claire to the case of Mangudi appeal number IA/43477/2014 but I believe that case is an unreported case and I am in fact not bound by that case. I do however refer to the case of Nwaigwe (adjournment fairness) [2014] UKUT 00418 that if a Tribunal refuses to accede to an adjournment request such decision could in principle be erroneous in law in several respects, these include a failure to take into account all material considerations and denying the party a fair hearing.
5. It is clear to me that the appellants' case to the First-tier Tribunal and the grounds of appeal included the fact that they relied heavily on the support, or that certainly the first appellant, who is the mother, relied heavily on the support of her sister who she said provided for her emotionally and that there was a strong bond in the UK between them and that they had established family life. It is clear from the First-tier Tribunal Judge's decision and the appeal notice that that Article 8 was in issue in this appeal.
6. On that basis, as Mr Claire points out, the first appellant was denied the opportunity to give oral evidence and indeed her sister was also denied the opportunity to give oral evidence which may have some bearing on the issues. It is difficult to say, as Mr Tufan said, what further the matter could be taken but nonetheless it is open to challenge on that basis and an opportunity to expand on the relationship.
7. I find that there is an error of law on the basis that an adjournment was not granted. I have seen that the explanation was that the representative was ill and there was no other representative to attend, and on these facts therefore I find a procedural error having regard to Nwaigwe and the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008.
8. I am satisfied that it is appropriate in this case to remit the appeal to the First-tier Tribunal as the appellants have not had their case considered properly by the First-tier Tribunal. The nature and extent of the judicial fact-finding which is necessary in order for the decision to be remade is such it is appropriate to remit the case to the First-tier Tribunal.
9. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.
No anonymity direction is made.

Signed Date 4th August 2016

Upper Tribunal Judge Rimington