Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12369/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13 December 2016
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

ANJAM SHAHZAD
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Bremang, Counsel
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Anjam Shahzad, was born on 1 January 1981 and is a male citizen of Pakistan. He appealed to the First-tier Tribunal (Judge Hillis) against a decision of the respondent dated 23 March 2015 to curtail his leave to remain as a partner of a person present and settled in the United Kingdom and to remove him under Section 47 of the Immigration, Asylum and Nationality Act 2006 to Pakistan. The First-tier Tribunal, in a decision promulgated on 1 August 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant has drafted the grounds of appeal himself. As Judge Parker noted when granting permission, the grounds of appeal, as drafted, do little more than disagree with the judge's findings. However, because the appellant was not represented at the time he applied for permission to appeal, Judge Parker went on to examine Judge Hillis's decision in its entirety. It appeared that she was concerned that the curtailment decision appeared not to have been accompanied by any reasons and that the judge had wrongly indicated the burden of proof in respect of the appellant's appeal against the curtailment decision rested on the appellant. She also wrote:
The decision to remove under Section 47 of the Immigration, Asylum and Nationality Act 2006 is included in the refusal notice of 23 March 2015 but references are made throughout the judge's decision to a decision to deport the appellant. The judge purports to dismiss the appellant's appeal against deportation although there is no decision to deport and no notice of appeal in deportation proceedings on the file.
3. Before the Upper Tribunal, the appellant was represented by Ms Bremang of Counsel. She relied on Saeed [2013] UKUT 144 (IAC)] and drew attention to the fact that the appellant had indicated in his notice of appeal to the First-tier Tribunal that "a decision notice was sent but the letter explaining reasons for the decision has not arrived". If the curtailment decision had not been properly served upon the appellant, then it was not effective.
4. Judge Parker's observations are problematic. In the bundle of papers before the First-tier Tribunal (and before the Upper Tribunal) there is a reasons letter addressed to the appellant and dated 4 March 2015. This is the same date as the decision itself which the appellant claims that he did receive. I accept that the appellant has raised the question of the reasons letter in his notice of appeal to the First-tier Tribunal but equally I have little doubt that the reasons letter was sent on 4 March 2015 either together with or on that same day as the decision letter to the appellant. In any event, the appellant correctly anticipated the reason for the curtailment of his leave to remain had been "the alleged (and false) end of our marriage" [see the appellant's notice of appeal to the First-tier Tribunal]. That, indeed, was the very issue which he went on to address at paragraph G of the notice of appeal and which was considered by Judge Hillis in the First-tier Tribunal. It would appear, therefore, that (a) the appellant did receive the decision letter; (b) there appears to be no reason why he did not receive the reasons letter which was written and apparently posted on the same date to the same address; (c) in any event, it is difficult to see what prejudice the appellant may have suffered since he has correctly identified the basis for the curtailment of his leave; (d) those reasons were the subject of the appeal before Judge Hillis.
5. It is quite correct for the appellant to say that Judge Hillis has incorrectly used the words "deport" and "deportation" when he should instead have been referring to removal under Section 47. At [28] Judge Hillis even went so far as "to conclude that the decision to deport the appellant to Pakistan on the basis that his presence in the UK is not conducive to the public good is not in breach of the law and the Immigration Rules". That was, of course, not the issue before the judge in respect of the Section 47 removal decision. However, the passage which I have just quoted shows every sign of having been a "template error"; the judge has mistakenly assumed that he was dealing with a deportation and had inserted the paragraph which I have quoted directly from a precedent or template. The question is whether that error has vitiated the reasoning behind his decision. Having read the decision very carefully, I find that it does not. I do not find that the judge has incorrectly directed himself to legal provisions with which he was not concerned. He has, quite properly, dealt not with the question of whether the appellant's presence in the United Kingdom is conducive to the public but rather whether his marriage was subsisting. His findings on that issue have not been challenged by the appellant or, at the Upper Tribunal hearing, by Ms Bremang. It follows that the appellant's leave was curtailed for reasons which the judge has upheld and which the appellant has not attempted to challenge.
6. In conclusion, I am not satisfied that the appellant did not receive the reasons letter and I find that he did, in any event, receive the decision letter to curtail his leave. In any event, he has always been aware of the reason why the Secretary of State curtailed his leave and has had the opportunity of addressing that in his appeal to the First-tier Tribunal. Secondly, whilst the judge's incorrect reference to deportation is to be regretted, I find that he has used that word as a synonym for 'removal'; importantly, he has, notwithstanding his use of somewhat inaccurate forms of expression, addressed the issues which he was required to address in considering the appeal against the decision to remove the appellant under Section 47. I find, therefore, that even though the judge has erred in law, I should exercise my discretion not to set aside his decision in this instance.
Notice of Decision
7. This appeal is dismissed.
8. No anonymity direction is made.

Signed Date 20 January 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 January 2017

Upper Tribunal Judge Clive Lane