Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09135/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 18th August 2016
on 2nd September 2016

Before

upper tribunal JUDGE MACLEMAN

Between

ashwinder singh arora
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Upadhyay, of Norman Lawson & Co., Solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of India born on 5th January 1989. He has not asked for anonymity. His case has an unusual and unfortunate procedural history. He had leave as a Tier 4 (General) Student until 28th October 2013. By application dated 24th October 2013 he sought further such leave.
2. In a letter dated 30th January 2014 the respondent refused that application. A bank statement relied upon by the appellant was not accepted as evidence of funds because it had been "proven to be false".
3. The appellant appealed to the First-tier Tribunal, maintaining in his grounds that the respondent had not established the document to be false. He did not attend the hearing. First-tier Tribunal Judge Majid dismissed his appeal by determination promulgated 17th October 2014, stating that the appellant had not persuaded him that he had been wrongly accused of deception and that without cogent rebutting evidence he could not succeed.
4. The appellant sought permission to appeal to the Upper Tribunal. His grounds included the assertion that the judge had gone wrong by taking the burden of proof to be upon the appellant.
5. On 8th December 2014 Designated FtT Judge Macdonald granted permission to appeal.
6. In a rule 24 response to the grant of permission the respondent argued that the appellant had been aware of the allegation, had not attended the hearing and had provided no evidence to counter it, and that his complaint about the burden of proof was disingenuous.
7. The case came before Upper Tribunal Judge Dawson on 27th March 2015. The hearing was at Glasgow (although the heading of the decision erroneously states that it was at Field House, London). Again, the appellant did not appear. In his decision, promulgated on 28th April 2015, Judge Dawson found that the First-tier Tribunal had gone wrong regarding the burden of proof, but he set out his reasons for considering the appeal had been in any event bound to fail, and so concluded that the decision of the First-tier Tribunal need not be set aside. He dismissed the appellant's appeal to the Upper Tribunal.
8. It then emerged that the appellant had provided the Upper Tribunal with details of a change of address on 25th February 2015 but the notice of hearing sent out two days later had not been sent to his updated address. In a decision dated 14th and issued on 15th July 2015 Upper Tribunal Judge O'Connor applied paragraph 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, set aside the decision of UT Judge Dawson, and directed that the appeal be listed for hearing before another judge of the UT to decide afresh.
9. The case accordingly came before me on 18th August 2016. Mrs Pettersen took the position that the First-tier Tribunal decision was wrong in law and, as it now emerged that the appellant did wish to pursue the issue, it would have to be set aside and remade.
10. It is not yet apparent, even after all this time, that the appellant has any substantive case to make in response to the respondent's document verification report. However, he now has representatives and time available to enable him to make any case which may be open to him in the First-tier Tribunal.
11. The decision of the First-tier Tribunal is set aside for error of law, as set out above, and as conceded. No previous findings are to stand. The case is remitted to the First-tier Tribunal for an entirely fresh hearing. (Judge Majid is excluded from the remaking of the decision.)

1 September 2016
Upper Tribunal Judge Macleman