Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08602/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

MR KRISHANAN Mootoosamy
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Deepchand, Solicitor from Lambeth Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of the First-tier Tribunal (First-tier Tribunal Judges Froom and McKenzie, sitting as a panel), promulgated on 4 July 2016, in which they concluded in the first instance that there was no valid appeal before them. The panel went on to consider the Appellant's Article 8 case in any event and concluded that this failed.
2. The issue of validity concerned the question of whether the Appellant had in fact signed the payment mandate as part of his application for further leave to remain. The initial application was attempted to be made on 19 September 2014, the day the Appellant's previous leave was due to expire. By a letter dated 2 October 2014 the Respondent wrote back to the Appellant stating that the attempted application was invalid because the payment mandate had not in fact been signed. The Appellant, through his solicitors, then resubmitted an application on 10 October 2014. By a decision dated 3 February 2015 the Respondent refused leave to remain (and in the process rejecting the Appellant's human rights claim) and stated that there was no right of appeal against that decision. Nonetheless the Appellant lodged an appeal with the First-tier Tribunal.
3. That appeal was lodged late and a reference was made to a Duty Judge to decide the issue of timeliness. The Duty Judge duly found in the Appellant's favour and at the same time raised the issue of whether or not this case involved an issue relating to the case of Basnet (validity of application - respondent) [2012] UKUT 00113(IAC). Directions were written up and sent out on 21 July 2015 (there is a question as to whether these were in fact sent to the Respondent, a matter to which I will return).

Decision of the First-tier Tribunal
4. The history of the case is set out in some detail by the panel. The findings and reasons begin at paragraph 21.
5. In paragraph 21 the panel cites both the case of Basnet and, importantly, the decision of the Upper Tribunal in Mitchell (Basnet Revisited) [2015] UKUT 00562 (IAC). The decision in Mitchell was published on the Tribunal's website on 20 October 2015, eight months before the hearing.
6. At paragraph 23 the panel noted that the directions of 21 July 2015 referred to previously did not appear to have been received by either the Appellant or the Respondent. It had evidence that the directions had been sent out to the Appellant at his home address but there was nothing to show that it had been sent out to the representatives. In respect of service on the Respondent, the panel noted that no address had been given on the directions notice. It is implicit in paragraph 23 that the panel concluded that the directions had probably not been sent out to at least the Respondent. Therefore the panel stated that was going to determine the appeal on the evidence that was before it, focusing on that of the Appellant.
7. Between paragraphs 24 and 30 the panel gives, on my count, seven reasons for rejecting the Appellant's claim that he had in fact signed the payment mandate. The reasons include: a failure to challenge the Respondent's assertions back in 2014; a failure to provide any evidence on the Appellant's particular; a failure to refer to the mandate point in his grounds of appeal to the First-tier Tribunal; and a failure even to mention this clearly in his witness statement prepared for the appeal before the panel. As a result of these reasons, at paragraph 31 the panel concludes that the Appellant had not proved on the balance of probabilities that he signed the payment mandate. It followed, said the panel, that the Appellant's attempted application on 19 September 2014 was not a valid application, and therefore his leave had expired on the same date. At the point that he did make a valid application in October 2014, he had no extant leave to remain. As a result of this, the Respondent's decision of 3 February 2015 did not carry with it a right of appeal. That dealt with the question of the validity.
8. The Tribunal goes on between paragraphs 33 and 50 to deal with the Article 8 claim in a "belt and braces" approach. It concludes that the Respondent's decision was proportionate.

The grounds of appeal and grant of permission
9. The grounds of appeal include fairly lengthy citations of case law together with copied passages therefrom. Whilst the case of Basnet is referred to, nothing is said about the decision in Mitchell whatsoever.
10. Permission to appeal was refused by the First-tier Tribunal but then granted by Upper Tribunal Judge Rimington on 1 September 2016. Judge Rimington refers to the decision in Basnet and comments that it was arguable that the panel failed to apply it correctly. There is no reference in the grant of permission to the decision in Mitchell.

The hearing before me
11. Mr Deepchand provided me with a copy of the directions issued on 21 July 2015 together with an attendance note dated 3 January 2017. This note indicates that Mr Deepchand had been told by the Tribunal Service customer advisor that the directions and questions had been served both on the Appellant's representatives and the Respondent in July 2015.
12. I raised the Mitchell issue with Mr Deepchand at the outset of the hearing and asked for submissions on this point. In essence, I posed the question of whether the Appellant's case was in reality a Mitchell-type of case rather than a Basnet scenario. If it were the former, the Tribunal would have been correct in placing the burden of proof upon the Appellant. If it were the latter, the panel would have been in error in so doing.
13. Mr Deepchand submitted that there was a fairness point here. The directions issued in July 2015 had in fact been issued and received by the Respondent, yet the Respondent had not complied with them. He accepted that prior to the hearing before the First-tier Tribunal the Appellant's solicitors had made no contact with either the Tribunal or the Respondent in order to chase up the apparent non-compliance with the said directions. Mr Deepchand submitted that the Appellant's evidence before the panel had been that he did in fact sign the relevant payment mandate. He suggested that if the Respondent had complied with the 2015 directions the panel may have reached a different conclusion.
14. Mr Tarlow relied on the Mitchell case. He submitted that the findings made by the panel were open to them and that there were no material errors of law.

Decision on error of law
15. As I announced to the parties at the hearing, I conclude that there are no material errors of law in the panel's decision.
16. It is right that the Duty Judge issued Basnet-related directions in July of 2015. This act preceded publication of the Mitchell decision by some four months or so. It is debateable whether or not the directions were in fact served on the Respondent given that no address is included at the bottom of the directions notice. I conclude it is more likely than not that these directions were not in fact either sent or received by the Respondent, and that this same conclusion was open to the panel. However, even if the directions were received, that is immaterial to the conclusions reached by the panel.
17. As is clear from paragraph 21 of its decision, the panel referred itself correctly to both the decisions in Basnet and Mitchell. I see from the Record of Proceedings that the Mitchell case was discussed at some length at the hearing itself and thus it cannot be said that the Appellant's representatives were taken by surprise in any way. It is clear to me that what the panel has in effect done is to conclude that the Appellant's case fell within the ambit of Mitchell rather than that of Basnet. This was a case involving (to use the phraseology employed in Mitchell) a form that was "not good on its face". In other words this was a case in which a relevant aspect of the form, namely the payment mandate, had not been signed by the Appellant. This is the very type of scenario that arose in the Mitchell decision (see, for example, paragraphs 8 and 9). In such a case, as Mitchell makes clear, the burden rests not with the Respondent but with the Appellant (see paragraph 11 of Mitchell). Thus there is no misdirection in law by the panel as to the location of the burden of proof.
18. It is also clear to me that the findings made in paragraphs 24 to 30 and the reasons stated in support of those findings were clearly open to the panel on the evidence before it (including that relating to paragraph 9 of the Appellant's witness statement, which I have checked for myself). There is nothing perverse about them whatsoever, they have not been properly challenged in the grounds of appeal in any event, and the conclusion of the panel that it rejected the Appellant's claim that he did sign the payment mandate was one that was entirely open to it. That being the case, the panel was correct to conclude that the purported application on 19 September 2014 was invalid, that the Appellant had no extant leave to remain when he made the valid application in October of the same year, and that in consequence the Respondent's decision of 3 February 2015 did not carry with it a right of appeal.
19. I would just add one further point. Mitchell also makes clear that the Respondent holds forms (including payment mandate forms) for a maximum of eighteen months before these are destroyed. At the time of the hearing before the panel in June 2016 more than eighteen months had elapsed since the purported application in September 2014. It was the case that the Respondent simply could not have produced that evidence even if she had received the directions. The passage of time during which the form will have been destroyed was caused by the Appellant not raising the point earlier than he did (just prior to the appeal hearing itself).
20. Further, even if the Respondent had received the directions in June 2015 but had not complied with them it makes no difference to the outcome in this case. That is because this is a Mitchell-type scenario rather than a Basnet-type scenario, and the burden of proof rested with the Appellant and not the Respondent.
21. In respect of the panel's treatment of the Article 8 issue, whilst it was unnecessary for this exercise to have been undertaken, the conclusions reached are unimpeachable.

Notice of Decision
The decision of the First-tier Tribunal does not contain any material errors of law.
The decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 13 January 2017

Deputy Upper Tribunal Judge Norton-Taylor

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 13 January 2017

Deputy Upper Tribunal Judge Norton-Taylor