Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA074492015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR. UJJWAL DHAKAL (NO ANONYMITY ORDER MADE)
Appellant

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

______________________________________

DECISION & REASONS
______________________________________

Representation:

For the Appellant: Mr S. Abbas, counsel instructed by Imperium Group Immigration Specialists
For the Respondent: Mr P. Duffy, Home Office Presenting Officer

1. The Appellant is a national of Nepal, born on 23 January 1977. He arrived in the United Kingdom on 21 October 2009 as a Tier 4 student and his leave was subsequently extended until 18 August 2014. On 1 August 2014 he applied for leave as a Tier 2 Migrant. On 10 October 2014, the Appellant sought to vary his leave to remain on the basis of his private life. The application for leave as a Tier 2 Migrant was refused on 6 February 2015, with reference to paragraph 322(1A) on the basis that his certificate of sponsorship was said to be false. The application was also refused with reference to paragraph 245HD(a) of the Rules.

2. The Appellant appealed against this decision and his appeal came before First tier Tribunal Judge CAS O'Garro for hearing on 15 October 2015. In a decision promulgated on 12 November 2015, she dismissed the appeal under the Immigration rules and on human rights grounds. At [14] of her decision, she records that the Appellant's representative raised a preliminary issue viz the fact that the Respondent had failed to consider the Appellant's application made on 10 October 2014 to vary his leave on the basis of his private life. At [15] she further records the submission that the Respondent's decision was not in accordance with the law for this reason and the matter should be sent back to the Respondent for consideration. At [21] the Judge concluded that having considered the refusal letter carefully, she was satisfied that he Respondent had considered both applications as she was required to do. The Judge then went on to consider the grounds of appeal and found at [25] that the Appellant had not intention to deceive when he submitted the Certificate of Sponsorship and the requirements of paragraph 322(1A) were not met but at [26] he did not submit a valid Certificate of Sponsorship and therefore could not succeed under paragraph 245HD(a) of the Rules.

3. An application for permission to appeal to the Upper Tribunal was made in time on 26 November 2015. The grounds of appeal, which take the form of a statement of truth by the Appellant's counsel, Mr Abbas, assert that at the hearing the First tier Tribunal Judge indicated that she had made a decision that the Respondent's decision was not in accordance with the law and that the matter would be remitted back to the Respondent for a fresh and proper consideration; that it was a "complete surprise" that the appeal had been refused; the hearing lasted only a couple of minutes and no questions were asked of the Appellant at all - there was no cross-examination or even adoption of the Appellant's witness statement and other than the preliminary issue raised, no submissions were advanced by either party in respect of the Article 8 claim or otherwise.

4. Permission to appeal was granted by First tier Tribunal Judge Colyer on 9 May 2016 on the basis that it was arguable that the Judge has misdirected herself and the grounds of appeal were arguable.

Hearing

5. At the hearing before me, Mr Duffy accepted that if what Mr Abbas claims is correct then the First tier Tribunal Judge had made an error of law. He had had regard to the record of proceeding taken by the Presenting Officer at that hearing, who had noted that the case had been taken as a float and that the First tier Tribunal Judge indicated she would send it back to the Respondent.

6. I inspected the Court file and the record of proceeding, which is rather illegible, would seem to indicate that the Judge recorded the submission that the appeal should be allowed on the basis that it was not in accordance with the law.

Decision

7. I find that First tier Tribunal Judge O'Garro erred materially in law in proceeding to determine the Appellant's appeal, without having heard evidence or submissions on the substantive issues, due to an indication whether mistaken or otherwise, that she intended to allow the appeal on the basis that the decision was not in accordance with the law. She then appeared at [21] to change her mind about how to proceed, but this was after the hearing had ended. This was clearly procedurally unfair particularly to the Appellant but to both parties as the Respondent had no opportunity to cross-examine the Appellant or to make submissions.

8. I remit the appeal for a de novo hearing before the First tier Tribunal.

Deputy Upper Tribunal Judge Chapman

13 June 2016