Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10267/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 9 August 2016

On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

DOROTHEA HARLESTON
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Arkhurst (Caulker and Co)
For the Respondent: Mr T Wilding (Senior Presenting Officer)

DECISION AND REASONS
1. This is the appeal of Dorothea Harleston, a citizen of Sierra Leone born 18 November 1944, against the decision of the First-tier Tribunal of 20 January 2016 to dismiss her appeal, itself brought against the Respondent's decision of 27 February 2015 to refuse her application for indefinite leave to remain outside the Immigration Rules.
2. The application of 11 December 2014 was on the basis that she was wholly dependent on her daughter who was settled here, and financially supported and accommodated her, whereas in Sierra Leone she had nobody to support her; she would also face dangers from the Ebola virus in Sierra Leone.
3. The application was refused, the Secretary of State noting the Appellant's entry to the United Kingdom as a visitor on 8 September 2014 until 17 December 2014, because there was no compelling compassionate case for leave outside the Rules, as
(a) She had spent her first 70 years in Sierra Leone and could adapt on return, it being expected that she could resume social, cultural or family ties there;
(b) Her daughter Dorothea could return to Sierra Leone to support her;
(c) Alternatively her daughter and she could retain contact with one another via modern means of communication, supplemented by further visits if wished such as those that had taken place in March 2012, May and July 2013, and May and September 2014;
(d) Alternatively other family members such as her daughter's three children could provide help and support, financial and otherwise, via social media;
(e) The World Health Organisation had concluded the chance of contracting Ebola was low.
4. The First-tier Tribunal noted that the Appellant had arrived in May 2014 and left the country from June until 8 September 2014 to travel to the USA, whereupon she made the application leading to this appeal. It opined that there was no justification for switching from general visitor leave to that of dependent relative, and found that it was reasonable to expect the Appellant to return to Sierra Leone where there was very little real risk of contracting the Ebola virus, and where the public interest outrode any family life between her and the Sponsor. Having regard to all considerations it thought relevant, it dismissed the appeal.
5. However, before the date of hearing, on 11 January 2016, the Appellant had written to the Tribunal stating that she no longer wished to pursue her appeal. Unfortunately that was not drawn to the attention of the Judge determining the appeal.
6. Before me it was agreed that this was a material error of law that vitiated the decision below. I agree. The express statement that the Appellant wished to withdraw the appeal was patently the giving of notice of the withdrawal of their appeal by providing to the Tribunal an appropriate written notice to such effect, as contemplated by Rule 17(1) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
7. As is shown by Rule 32 of the 2014 Procedure Rules, where a document relating to the proceedings was not provided to the First-tier Tribunal at an appropriate time, it may set aside a decision otherwise purporting to dispose of proceedings: the availability of this power at First-tier Tribunal level itself shows that overlooking material correspondence where unfairness subsequently results is likely to amount to a material error of law. The same conclusion comes from a consideration of public law principles: clearly it is unfair for a person to receive a substantive decision regarding to a matter which they no longer sought to contest.
8. I accordingly accepted that there were material errors of law established in the First-tier Tribunal's decision.
9. The parties were agreed that I should remake the decision of the First-tier Tribunal. I accordingly do so.
10. The appeal before the First-tier Tribunal should have been treated as withdrawn. No objection having been made to the attempt to withdraw it at the time or subsequently, I accept that the Appellant had sought to withdraw her appeal pursuant to Rule 17(1) the 2014 Procedure Rules on 11 January 2015. The parties made no submissions before me as to whether I should approach the matter on the basis that the appeal should be treated as having been withdrawn under the First-tier Tribunal Rules from early 2014, or whether I should now treat it as withdrawn in relation to the Upper Tribunal's own procedure rules, ie The Tribunal Procedure (Upper Tribunal) Rules 2008. As the agreed objective of both advocates was that the proceedings below be treated as a nullity, I consider it appropriate to take the former route and find that the appeal had been withdrawn from the first working day after the fax was sent on 11 January 2015.
11. I accordingly allow the appeal brought by the Appellant against the decision of the First-tier Tribunal. And I declare that her appeal against the decision of the Respondent was withdrawn.
Decision:
The Appellant's appeal to the Upper Tribunal is allowed. I declare that her appeal against the decision of the Respondent should be recognised as withdrawn.

Signed Date: 10 August 2016

Judge Symes
Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date: 10 August 2016

Judge Symes
Judge of the Upper Tribunal