Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08729/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing
On 14 September 2016
On 7 July 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

shah sawar khan afridi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar, Counsel instructed by Lee Valley Solicitors Ltd.
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Pakistan who was born on 17 September 1985. He arrived in this country as a student with leave valid from 28 September 2011 to 13 October 2014. It appears that he might not have been the best of students because the respondent received notice from the University of Wales which was the appellant's sponsor that they were ceasing sponsoring him because he had not been attending as he should. In consequence, and there is no dispute as to this, the respondent on 16 April 2013 wrote to the appellant to notify him that his leave was being curtailed effective from 15 June 2015. I will return to these dates in due course.
2. Subsequently on 11 October 2014 the appellant applied for leave to remain on the basis of his private and family life in the UK, which application was refused on 17 February 2015. For the reasons which follow it is not necessary for the Tribunal at this stage to consider the merits or otherwise of that application. According to the Rules which appertained at the time of the application the appellant would only have had a right to appeal against this decision if it had been an immigration decision and it would only have been an immigration decision if at the time of making his application he had valid leave to remain. That is common ground between the parties. According to the appellant he did have current leave to remain because the curtailment decision which had been sent to the address the respondent had for him on 16 April 2013 was not received by him. It is again common ground that in fact he did not receive that notice because the notification was returned to the respondent as "addressee not known" (see paragraph 18 of the Judge Lloyd's decision to which reference will be made below). The respondent's position was that the curtailment notice had in fact been validly served, or rather that was the respondent's decision at the time the application of 11 October 2014 was refused.
3. The appellant appealed against the decision refusing him leave to remain on the basis of his private and family life and his appeal came before First-tier Tribunal Judge S D Lloyd sitting at Sheldon Court, Birmingham on 1 December 2015. Having heard submissions by both parties Judge Lloyd did not consider the appeal on the merits but rather found that the Tribunal lacked jurisdiction because the appellant had not had valid leave to remain at the time he made his Article 8 application which was the subject of appeal.
4. The appellant now appeals against this decision leave having been granted by First-tier Tribunal Judge Pedro on 3 June 2016.
5. In my judgment Judge Lloyd made a material error by finding that the Tribunal lacked jurisdiction. My reasons for so finding are summarised very shortly below.
6. In July 2013 the Rules as to service of a curtailment notice were altered to provide for alternative to personal service in certain cases such as the present where the whereabouts of a person whom the respondent wished to serve with a curtailment notice were unknown. However and Mr Melvin does not seek to persuade me that the position was other than as I shall record, before then and certainly as at April 2013 when the curtailment notice was sent and 15 June 2013 when it became effective, in order for a curtailment notice to have effect that notice had to be served personally on the person concerned. As I have already noted it is common ground that this notification letter was not in fact personally served because it was returned as "addressee not known". At any time after July 2013 it would have been open to the respondent to serve this notice again using the form of service then provided within the Rules but Mr Melvin has very fairly accepted that there is nothing within the respondent's papers to indicate that this was done. Accordingly it follows that the curtailment notice not having validly been served on the appellant as at the date on which he made his application which was 11 October 2014, as at this date he still had valid leave to be in this country which leave did not expire until two days later.
7. It follows that the decision to refuse his application was indeed an immigration decision and that the appellant had a right of appeal.
8. Accordingly, Judge Lloyd's decision that the Tribunal lacked jurisdiction cannot be sustained and as there has been no hearing as to the merits of his appeal this appeal will now have to be heard properly within the First-tier Tribunal and I will so order.
Decision
The decision of Judge Lloyd that the Tribunal lacked jurisdiction to hear the appellant's appeal is set aside.
The appeal will be remitted to the First-tier Tribunal for hearing on the merits by any judge other than Judge Lloyd.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 29 July 2016