IA/09719/2015

• Status of case: Unreported
• Hearing date: 1 Aug 2016
• Promulgation date: 4 Aug 2016
• Publication date: 1 Dec 2017
• Last updated on: 1 Dec 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09719/2015

THE IMMIGRATION ACTS


No hearing
Decision Promulgated

On 4th August 2016



Before

MR C M G OCKELTON, VICE PRESIDENT

Between

MOHSIN KHAN
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



DECISION, REMITTAL AND DIRECTIONS

1. On 14 June 2016 I wrote to the parties as follows:

"There is in this case an application for permission to appeal to the Court of Appeal.

The grounds challenge the decision of the FtTJ (upheld by the UT) dismissing the appellant's appeal, in essence, on the basis that no ground of appeal had been sent to the FtT for the hearing on 30 June 2015. The FtTJ effectively did not engage with the merits of the claim.

The appellant's case is that grounds were submitted with appeal form and were again sent by fax on 23 April in response to a request from the FtT on 16 April. The DUTJ stated there were no grounds before the FtTJ or, indeed, the UT. The file contains a bundle submitted by the appeal to the Arnhem Support Centre on 21 October 2015. That is the day before the UT hearing. It contains a letter from the appellant' representatives dated 23 April together with proof of faxing of a 17 pages of document (including that letter) to the FtT. The letter is sent in response to the FtT's letter of 16 April 2015 and attached is said to be the grounds which had already been submitted with the appeal form. It does not appear this bundle was placed before the DUTJ at the 22 October hearing. It contains material supportive of the appellant's claim that grounds of appeal were submitted in time for the FtT's hearing on 30 June 2015. Had the DUTJ seen this bundle it is likely, in my view, that he would have concluded that the appellant had submitted grounds to the FtT and, for whatever reason, they were not considered by the Judge. The FtT, therefore, committed a procedural error in not considering the grounds and the FtT's decision is arguably flawed. The UT's decision is also arguably procedurally flawed as the bundle of 21 October was not considered although it had been received by the administration prior to the UT hearing.

In the circumstances it appears to me that rule 43 applies to this case, with particular reference to r 43(2)(d). I propose to set aside the decision of the Upper Tribunal and direct that the matter be reheard. Any submissions to the contrary will be considered if received within 14 days of the date of this letter."

No submissions to the contrary have been received.

2. I now set aside the decision of Judge Peart.

3. On the appeal to the Upper Tribunal, I find that the First-tier Tribunal erred in law for the reasons set out above. I set aside its decision. I remit the appeal for re-determination by the First-tier Tribunal and direct that it be determined by a judge other than Judges Law, Hodgkinson and Peart.






C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 1 August 2016