The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08822/2013


Heard at Field House
Determination Promulgated
On 23 October 2013
On 11 November 2013









For the Appellant: No appearance
For the Respondent: Mr Bramble

1. The Appellant is a citizen of Jamaica born in 1983. She appealed against a decision of the Respondent made on 5 March 2013 to refuse her application to vary her leave to remain as a spouse under the Immigration Rules.
2. She appealed. At the hearing at Hatton Cross on 30 July 2013 before Judge of the First-tier Tribunal Sweet the Appellant attended. She renewed the application for an adjournment which had been made by her solicitors on 15 July 2013, submitting that her husband was unable to attend the hearing as he was abroad on holiday and her solicitors were not able to represent her on that day.
3. The judge refused the adjournment request for the same reason as was given by a judge on the papers on 19 July 2013, namely, the Appellant had had sufficient time to give dates to avoid since notice of hearing was sent out in April 2013 (paragraph [12] of the determination). It was noted from the travel documents that the booking for the holiday had been made in August 2012. The judge was "satisfied that a fair hearing of this appeal could still proceed" [12].
4. The judge went on to dismiss the appeal under the Immigration Rules.
5. The Appellant sought permission to appeal which was granted on 9 September 2013.
6. There were three points. First, the judge was wrong to proceed with the hearing in circumstances in which it was clear that the foreign holiday had been booked before the immigration decision by the Respondent had been made. It was also wrong in the circumstances to have taken against the Appellant's credibility that neither her spouse nor her solicitor attended the hearing.
7. Further, the judge failed adequately to deal with Article 8 ECHR.
8. We noted a Rule 24 response from the Respondent (19 September 2013) which stated that the error of law application was not opposed and that the Tribunal was invited to determine the appeal with a fresh oral hearing.
9. In light of that reply and noting that the error of law hearing was set for 1400 hours we were concerned to avoid an unnecessary journey by the Appellant who lives in Buckinghamshire, and by her solicitors. To that end we called the case at 1000 hours when we confirmed from Mr Bramble that it was agreed that the judge had materially erred in proceeding with the hearing in the absence of the spouse and that the determination be set aside for rehearing. With his agreement the Appellant and her solicitors were contacted and told they need not attend.
10. The test to decide whether the judge erred in law in refusing an adjournment is whether it was unfair (per SH (Afghanistan) [2011] EWCA Civ 1284).
11. In this case it is clear that a holiday abroad had been booked by the Appellant's spouse in August 2012 which was before the immigration decision was made. It is clear also that after notice of hearing was sent out in April 2013 for the appeal against the immigration decision documentary proof of the booking was put before the Tribunal.
12. We agreed with parties that in the circumstances of this case the judge erred in not adjourning the hearing to allow the Appellant's spouse to attend and give oral evidence which might have had an effect on credibility findings. The judge also erred in finding as a factor against the credibility of the Appellant the non-appearance at the hearing of the spouse and solicitors.
13. The judge in failing to grant an adjournment committed a procedural irregularity capable of making a material difference to the outcome or fairness of the proceedings.
14. For the sake of completeness we would add that we also agreed with parties that the judge further erred when, having dismissed the case under the Rules, he failed to consider Article 8 which had been raised in the original grounds.
The decision of the First-tier Tribunal included the making of an error on a point of law. The decision is set aside.
The effect of the error has been to deprive a party before the First tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First tier Tribunal. The appeal is remitted to the First tier Tribunal in accordance with Practise Statement paragraph 7.2 to be heard afresh by that Tribunal. No findings stand.

Signed Date

Upper Tribunal Judge Conway