Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11148/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 6th September 2016
On 6th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

ALI IFTIKHAR
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. On 2nd September 2016 representatives for the appellant, Juris Solicitors, wrote to the Upper Tribunal requesting that this matter should be decided on the papers having regard to all the documentary evidence previously submitted. However, they also enclosed a 31 page bundle of documents stated to be items already submitted to the First-tier Tribunal but which were important having regard to the matter before the Upper Tribunal.
2. Having noted the request, I decided that I could hear the appeal in the absence of the appellant applying the provisions of paragraph 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as it was in the interests of justice to do so.
Background
3. On 3rd May 2016 Judge of the First-tier Tribunal Martins gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal P S White who dismissed the appeal against the decision of the respondent to refuse to grant further leave to remain as a Tier 4 Student in accordance with the points-based system.
Submissions
4. Judge Martins noted that the grounds of application asserted that the appellant was a genuine Tier 4 (General) Student who had submitted all requisite documents with his application, including a valid CAS. However, the appellant contended that, not having received the Home Office refusal letter at the correct time, he had no option but to lodge his appeal late and was awaiting the outcome of his application for an extension of time and notification of when to submit his bundle of evidence but the Tribunal made its decision on the appeal. He was not, therefore, afforded an opportunity to fully present his case to the Tribunal. The grounds also submitted that there were two different refusal letters containing different reasons and so the judge erred in law in deciding the matter. Finally, it was also argued that the judge had failed to consider human rights under Article 8. Judge Martins thought all grounds were arguable.
5. On 11th May 2016 the respondent submitted a reply under Rule 24 opposing further appeal. It was pointed out that the appellant had requested that his appeal before the First-tier Tribunal should be decided on the papers and, as such, it was the appellant's responsibility to ensure that any evidence he wished to rely upon was submitted to the Tribunal. No evidence had been submitted by the appellant to establish that he had, at any time, sought to contact the Tribunal to find out whether or not his application to appeal out of time had been accepted. The appellant submitted his application to appeal in March 2015 which was seven months before it was heard by the First-tier Judge in October 2015. The grounds failed to explain why the appellant was unable to submit any evidence within this period. As to the point concerning a second refusal letter the judge was right to rely upon the refusal submitted with the original appeal. On that basis the appellant would have been well aware of the case against him and be in a position to submit any relevant evidence he wished to rely upon. As to the human rights claim, the appellant had submitted no evidence of any family or private life in the United Kingdom and so the judge was entitled to conclude that the appellant had failed to establish a basis for that claim.
6. Mr Bates confirmed that the respondent relied upon the Rule 24 response. He also made further brief submissions. He pointed out that the judge had dealt fully with the issue of two refusal letters in paragraphs 3 and 4 of the decision. He also drew attention to paragraph 8 of the decision in which the judge considered whether the respondent should have allowed the appellant 60 days to find a new sponsor on the basis that the sponsor's licence had been revoked. However, the judge was right to point out that the refusal was not based on the revocation of the sponsor's licence but the withdrawal of the CAS by the sponsor itself. This did not raise the same issues of justice and fairness. The judge also gave cogent reasons in paragraph 9 for the appellant being unable to succeed under the Immigration Rules. As to the human rights claim, the judge was right to dismiss this in the absence of any supporting evidence. On this basis there were no compelling circumstances which would warrant consideration of human rights outside the Immigration Rules.
7. Mr Bates also pointed out that a notice sent to the appellant and his solicitors on 31st July 2015 required the appellant to file any written evidence and submissions by 28th August 2015 which clearly he had not done.
Conclusion and Reasons
8. At the end of the hearing and after I had considered the matter for a few moments, I announced that I was not satisfied that the decision showed an error on a point of law and now give my reasons for that conclusion.
9. The appellant's main contention is that he was not made aware that his appeal was to proceed before the First-tier Tribunal when he acknowledged that he had given late notice of appeal. The Tribunal file shows that on 20th April 2015 the appellant and his representatives at the time, One Source Solicitors, were given notice to file evidence to show that either the appeal was in time or there were special circumstances for failing to give notice in time. On 26th June 2015 a Judge of the First-tier Tribunal decided to extend time on the basis of reasons submitted by the appellant. The Tribunal file also shows that notice of that decision was sent to the appellant and One Source Solicitors by second-class mail on 28th July 2015. A further notice was sent to the same addressees on 31st July 2015, noting that the appellant had indicated that he wanted his appeal decided on the papers and giving directions for the appellant and respondent to file any written evidence and submissions to the Tribunal by 28th August 2015. Notices had been sent to the addresses notified by the appellant and One Source Solicitors in the notice of appeal which was originally lodged on 18th March 2015. The Tribunal file does not show that any of the notices were returned in the post. It is therefore evident that the appellant knew or ought to have known that an extension of time to appeal had been granted and he had to submit evidence before the appeal was decided on the papers.
10. Further, the file suggests that the appellant did not appoint alternative representatives until after receipt of the First-tier decision when Clearview solicitors submitted the notice of application to appeal to the Upper Tribunal. Since then, the appellant changed representatives again as documents relevant to this application were submitted by Juris Solicitors on 2nd September. I have noted that the bundle submitted by the latter includes the notice of late appeal decision sent out by the Tribunal on 28th July 2015 to One Source Solicitors. This further supports my conclusion that, at the relevant time, notices were being received by both appellant and his representatives. On the basis that the appellant was, at least, aware that his appeal was proceeding, it was incumbent upon him and his representatives to ensure that evidence and submissions to support the paper appeal were submitted without delay or, at least, enquiries should be made of the likely progress of the appeal from that time.
11. In view of my comments, above, Judge White was clearly not in error in proceeding to deal with the appeal on the papers on 15th October 2015 taking into account the documentary evidence which had been submitted to that date.
12. As to the issue concerning two refusal notices it is clear that the appellant was appealing against the refusal of 19th February 2015 as that was the decision attached to the notice of appeal which, itself, gives that as the date of decision in question. The judge properly analyses the situation in paragraphs 3 and 4 of the decision noting that the second refusal decision pre-dates the one relied upon. The judge was, therefore, entitled to proceed on the basis of the refusal which the appellant and his representatives had made the subject of the notice of appeal. In that respect the judge gives cogent reasons from paragraph 6 onwards before concluding that the appeal could not succeed under the Rules as the appellant clearly did not have a valid CAS.
13. As to the human rights claim under Article 8, the judge was entitled to rely on the evidence submitted prior to his disposal of the matter on 15th October 2015, the appellant or his representatives having taken no steps to check on the progress of the appeal and to submit any further documentation to support each aspect of it. The notice of appeal at section 8 simply makes a general allegation that the respondent's decision infringes the appellant's human rights. The judge was entitled to conclude that the appellant had not shown that the respondent's refusal was a disproportionate exercise of legitimate immigration control. The judge's conclusions in paragraph 10 of the decision are adequately reasoned. The judge was not obliged to search for any compelling circumstances which might have led to consideration of Article 8 issues outside the Immigration Rules when clearly the evidence before him showed that there were none.
Notice of Decision
The decision of the First-tier Tribunal does not show an error on a point of law and shall stand.
Anonymity
Anonymity was not requested nor do I consider it appropriate in this appeal.

Signed Date 6th October 2016

Deputy Upper Tribunal Judge Garratt