Tribunal decisions

The decision

IAC-AH-dh-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/08126/2014
IA/08135/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th January 2017
On 01st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mrs H N J (first appellant)
master s H (a minor) (second appellant)
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Z Hussain, Solicitor
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The first and second Appellants are citizens of Bangladesh and are respectively born on 1st October 1974 and 15th February 2009. The second Appellant is the son of the first Appellant. By order of the First-tier Tribunal the proceedings herein were anonymised. No application is made to vary that order and I leave in force the anonymity direction.
2. Unless mentioned specifically hereinafter all references herein are to the first Appellant. The second Appellant's appeal is dependent upon that of the first Appellant.
3. The first Appellant entered the United Kingdom on a student visa on 24th February 2007. Her spouse entered as her dependant on 7th February 2008. The Appellant child S H was born in the United Kingdom on 15th February 2009. The Appellant applied for further leave as a student on 23rd December 2010 and this was granted until 29th June 2012. Her dependant spouse and child were granted leave in line with the first Appellant. On 26th June 2012 the Appellant applied with her spouse and dependent child for leave to remain outside the Immigration Rules but this application was refused on 4th March 2013. On 14th March 2013 the Appellant submitted an appeal against that decision and on 12th August 2013 her appeal was allowed to the limited extent that the Secretary of State agreed to consider her application grounds under Article 3.
4. On 10th January 2014 the Secretary of State acknowledged that the Appellant would have been allowed to the extent that her claim under Article 3 of the Human Rights Act would be accepted. Having reviewed that application and made it clear that the basis of her application was solely on the basis of her stated fear of return to Bangladesh, she was invited to make a fresh application for asylum and this was made. On 20th January a letter was written advising the Appellant that if she wished her application would be considered on exceptional circumstances outside the Immigration Rules. If the application was unsuccessful she would make an application for asylum. The application was refused by the Secretary of State by a Notice of Refusal and it is the appeal against that decision that came before Judge of the First-tier Tribunal Roots sitting at Harmondsworth on 21st April 2016. In a decision and reasons promulgated on 24th May 2016 the Appellants' appeal was dismissed both under the Immigration Rules and on human rights grounds. It is pertinent to note that the Appellant did not personally attend that hearing. Her failure to attend was addressed as a preliminary issue by the First-tier Tribunal Judge. This is to be found at paragraph 2 of his decision where he states...
"2. The appellant did not attend the Hearing of this appeal. The tribunal staff attempted to ring both her solicitors and herself but all of the numbers on file were not obtainable. There was confirmation on the file that notice of the hearing had been sent to the appellant and her solicitors. No adjournment request had been received. In the circumstances I decided that it was in accordance with the rules and the overriding objective to proceed with this appeal."
5. No criticism is levelled at that approach by the judge. On 11th July 2016 the Appellant lodged handwritten Grounds of Appeal to the Upper Tribunal advising that she did not receive any letter of hearing date from the Tribunal and consequently had not attended. On 25th October Judge Osborne refused permission to appeal noting that the decision was careful and well-reasoned and that the judge had set out the pertinent issues, law and evidence relating to the facts of the appeal.
6. On 14th November 2016 amended Grounds of Appeal were lodged to the Upper Tribunal. The amended grounds run to some 23 paragraphs and were prepared by legal representatives. On 8th December 2016 Deputy Upper Tribunal Judge Taylor granted permission to appeal. Judge Taylor had sympathy with the First-tier Tribunal Judge who, as we all agree, made every effort to ascertain whether the Appellant and her solicitors would be attending. Having read the grounds in the file Judge Taylor considered it to be arguable that in fact he should not have done so. Firstly, according to the grounds i.e. the amended grounds the Appellant's former legal representatives are no longer in business and secondly the Appellant had some form of restraining order against her husband and had moved her address and changed her contact details. It was contended that the new details had been provided to the Tribunal in confidence. Judge Taylor noted that there were certainly a number of different addresses for the Appellant on the file and that the hearing notice had been sent to an address which was not that on the cover sheet but on a separate piece of paper. Judge Taylor noted that the Appellant had attended her hearings in the past and that in the Grounds of Appeal the Appellant states that she would have attended on this occasion had she known of the hearing. It is clear from the determination that the judge had reached his conclusions at least in part on the assumption that the Appellant had chosen not to attend the hearing.
7. On 5th January 2017 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response invited the Upper Tribunal to decide whether there was a material error of law in light of the fact that the Tribunal had the Appellant's current address but sent the notice to the wrong address.
8. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal. The Appellant appears by her instructed solicitor Mr Hussain. Mr Hussain comes to this matter extremely late. He has only just been instructed and he is from the law firm Hubers Law Partners. I have placed him on the court record. He has filed a bundle which he had provided bearing in mind he was uncertain as to how this case was to proceed and he has provided me with a skeleton argument relating to the Appellant's appeal. The Secretary of State appears by her Home Office Presenting Officer Mr Kotas.
Submissions/Discussion
9. The issue in this matter turns at this instance on whether or not there is an unfairness and prejudice to the Appellant in not setting aside the decision of the First-tier Tribunal and rehearing the matter. I acknowledge that both legal representatives do not seek to challenge the approach upon which the First-tier Tribunal Judge reached his decision but conclude that there was a material unfairness by the judge or at least that is what is contended by the Appellant's representative in proceeding for the appeal to be heard in the absence of the Appellant.
10. Albeit that this is an appeal by Mrs H N J it was agreed that Mr Kotas would put his submissions first. He states that he is not in a position to concede the appeal outright and that he would have been in a better position to consider the matter if the Appellant had given greater clarity as to her reasons as to why she had not received the notice of hearing. He points out that the Appellant received the determination swiftly and sent in Grounds of Appeal. He would seek further clarity but leaves the matter in my hands.
11. Mr Hussain takes me to his skeleton argument. He acknowledges that the first Appellant had left the family home with the second Appellant and with the assistance of the police following an episode of severe domestic violence. He points out that the Appellant found that there had been a further hearing on 21st April 2016 in her absence as her solicitors had ceased to trade at the beginning of 2016 without letting her know and as any notice of hearing sent to her had been sent to a previous address she had no notice. He advises that the first Appellant only found this out when she contacted the First-tier Tribunal and after being provided with a copy of the decision she then promptly made the application for permission to appeal. He also advises that she telephone the Law Society to see what steps she can take and they advised her that she would have to write in and secondly thereafter contacted the Tribunal. It was following contacting the Tribunal that the Appellant obtained alternative representatives (not her current representatives) who drafted the Grounds of Appeal. He asked me to find that there is a prejudicial unfairness to the Appellant in the judge making findings without having heard her oral testimony and he asked me to set aside the decision and to remit the matter back to the First-tier Tribunal. In brief response Mr Kotas advises that he is very much in my hands and that he hears the explanations given and he does appreciate that those explanations were not obviously available before the First-tier Tribunal Judge.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
14. This is the judge who on the face of it has dealt with the issues as he saw them very thoroughly. However he was unaware of the circumstances surrounding the failure of the first Appellant to attend. It is accepted by both legal representatives that this is an Appellant who would attend hearings regularly in the past and that she was not someone who merely ignored the matter and failed to attend. Whilst the judge attempted through the court system to contact the Appellant he was not going to be aware firstly that the Appellant's legal representatives were no longer trading, secondly that the Appellant had tried to contact them for a period of months and thirdly of the fact that due to the issues of domestic violence the Appellant had had to change her address. Had he been aware of these features he may well have granted an adjournment. In such circumstances I am satisfied that the interests of justice require me to find that there is a material error of law and to set aside the decision and to order that the matter be reheard. It is emphasised of course that that does not mean that a future Tribunal would come to a different decision to that of the First-tier Tribunal. That is a matter for further evidence and for a further judge.
Notice of Decision

The decision of the First-tier Tribunal contains a material error of law. The decision is set aside and directions are set out hereinafter for the rehearing of this matter.
1. On finding that there is a material error of law in the decision of the First-tier Tribunal the decision of the First-tier Tribunal is set aside with none of the findings of fact to stand.
2. The matter is remitted back to the First-tier Tribunal to be heard by any Immigration Judge other than Immigration Judge Roots at Taylor House (or such other immigration hearing centre as the administration considers appropriate) on the first available date 28 days hence with an ELH of 2 hours.
3. That there be leave to either party to file and/or serve an additional bundle of objective and subjective evidence upon which they intend to rely at least seven days prehearing.
4. That it be recorded that Hubers Law Practice, 28 Leman Street, Pennine House, London E1 80R be the solicitors on record on behalf of the Appellant and that they be served with a copy of this decision.
5. That in the event of the Appellant requiring an interpreter at the restored hearing that the Appellant's instructed solicitors do notify the Tribunal within seven days of receipt of these directions.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris