Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10863/2015

THE IMMIGRATION ACTS

Decision on the Papers at Field House
Decision & Reasons Promulgated
On 25 August 2016
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

mohammad lokman miah
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
1. The appellant is a national of Bangladesh, born on 1 November 1964. He appeals against the decision of the respondent to deprive him of his British citizenship.

2. The appellant arrived in the United Kingdom in 2002 as a work permit holder. After working in a restaurant for five years the appellant was granted indefinite leave to remain. On 26 May 2009 he obtained British citizenship and was issued with a Certificate of Naturalisation.

3. On 10 October 2012 the Home Office wrote to the appellant stating that the Secretary of State had reason to believe that the appellant had obtained his status as a British citizen by means of fraud. In particular, the Secretary of State had received information from the appellant's former employer, which indicated that the appellant had obtained indefinite leave to remain (ILR) fraudulently as he was not in employment at the time of his application. The appellant was invited to submit a response and any representations within 21 days. The appellant's solicitors wrote to the Home Office denying any deception and confirming that the appellant was in employment at the time of the ILR application.

4. In March 2014 the Home Office decided to make an order depriving the appellant of British citizenship. On 25 March 2014 a notice of decision was sent to the appellant by recorded delivery. It was followed by a notice of order which was sent by recorded delivery on 2 April 2014.

5. On 22 April 2014 the Home Office sent a letter to the appellant enclosing notification that he was a person liable to removal from the United Kingdom (form IS151A) together with a removal decision made under Section 10(1)(b) of the Immigration and Asylum Act 1999. The appellant was informed that the removal decision was appealable outside the United Kingdom.

6. The operative substantive decision would be that of 25 March 2014. It was common ground that the notice of appeal was lodged over twelve months after the notice of decision was served. Two issues have occupied a considerable amount of judicial time, namely whether and when, the notice of decision was served and if indeed the notice of appeal was out of time. If so whether to extend time.
7. The appellant appealed to the First-tier Tribunal, which appeal came before First-tier Tribunal Judge Grimshaw on 8 July 2015. It was the finding of the Judge that notice of the decision had been served and the appeal out of time and in the circumstances it was adjudged that extending time would not be permitted.
8. The finding of service is perhaps a little obscured in fact. It was noted in paragraph 22 of the determination that the recorded delivery letter, containing the notice of decision was said to be delivered and a signature obtained, but on 9 April 2014 the Home Office were alerted to the fact that the recorded delivery letter had been returned to sender with little explanation as to the reason for its return.
9. The appellant sought leave to appeal from the First-tier Tribunal against that finding. Leave was refused firstly by First-tier Tribunal Judge Lambert and secondly by Upper Tribunal Judge McGeachy on the basis that no arguable error had been disclosed in the decision.
10. An application by way of judicial review was then instigated against the decision not to give permission to appeal against the decision of Judge Grimshaw, that there no valid appeal and a refusal to extend time. Permission was granted by His Honour, Judge John Behrens in an order dated 23 February 2016. The decision of the Upper Tribunal to refuse permission to appeal was quashed by order of His Honour, Judge Kaye QC on 23 March 2016. In light of that decision permission to appeal against the First-Tribunal decision was granted by Mr C M G Ockelton, Vice President of the Upper Tribunal on 9 May 2016. Thus it was listed for hearing on 30 August 2016 to determine whether or not indeed Judge Grimshaw's determination was marred by error of law or should stand.
11. Mr Deller, representing the respondent, in a letter of 23 August 2016 has indicated that the respondent accepts that there were material errors of law in Judge Grimshaw's determination. He agreed that the First-tier Tribunal ought properly to have extended time and admitted the appeals against the relevant decisions.
12. It was suggested that the Upper Tribunal could deal with the matter without the need of the oral hearing and the appellant's solicitors, through email dated 23 August 2016, have agreed.
13. As I have indicated I have concerns as to the safety of the finding as to actual service of the decision, also as to the correctness of the refusal to extend time to appeal in any event. A consistent theme of the various orders has been the importance to determine the merits of the application as British citizenship is involved.
14. In those circumstances I set aside the decision of Judge Grimshaw and allow the appellant's appeal against that decision to that extent.
15. Given the concession, that is made by the respondent that timeliness is no longer an issue, I grant the necessary extension of time, if required, and direct that the appeal be heard upon its merits by the First-tier Tribunal. It is important that all parties obtain the necessary evidence to support their requisite positions. I note for example in the course of the judicial review proceedings that there is a detailed statement of facts and grounds containing a witness statement of the appellant dated 30 June 2015. That seems to be a statement setting out the circumstances of his work and his relationship with his employer, Gulam, and that is clearly a document worthy of considerable attention by all parties.
16. It seems to me, however, that the First-tier Tribunal is well able to issue such directions as it considers appropriate in order to effectively hear the issues that are joined.
17. I remit the appeal to the First-tier Tribunal in accordance with the Senior President's Practice Direction, given the fact that there will need to be much consideration of the factual basis and that no prior consideration as to the merits of the matter has been made.
18. I raise one matter for consideration, which may or may not prove to be material, and that is the form IS151A dated 22 April 2014 allegedly served upon the appellant. The appellant denies receiving that document which, if valid, raises the issue of whether the appellant still has an in-country right of appeal. No argument has been addressed as to that particular document. Certainly nothing has been raised in the lengthy correspondence and legal arguments, submissions and orders concerning that particular matter. Given the importance attributed to a merits argument by the decisions of the Administrative Court and the agreement by the respondent that that should be the case, it may be that the service of that decision of 22 April was not effective or, if it was, that it would be withdrawn to enable an in-country right to be fully exercised before the First-tier Tribunal. I mention the matter however simply for abundance of caution.

Notice of Decision

The appeal of the Applicant is allowed .The decision of judge Grimshaw is set aside to be remade by the first-tier tribunal.

No anonymity direction is made.

Signed Date 25 August 2016.

Upper Tribunal Judge King TD

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal I have considered making a fee award and have decided to make no fee award as the appeal has not yet been determined

Signed Date 25 August 2016

Upper Tribunal Judge King TD