Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12383/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
On 4 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M S A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Ahammad, legal representative
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Bangladesh born on 10 June 1984. He appealed against a decision of the respondent dated 15 October 2014 to refuse to vary his leave to remain in the United Kingdom and to remove him by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. His appeal came before Judge of the First-tier Tribunal Nightingale ("the FTTJ") who, in a decision promulgated on 24 February 2016, dismissed his appeal.
2. The appellant did not attend the hearing before the FTTJ. His representative, Ms Ahammad, made an application to adjourn it inter alia on the ground that the appellant had been taken into hospital on the morning of the hearing and was unable to attend. The FTTJ directed that the appellant submit by 15 February 2016 any medical evidence that he was unfit to attend the hearing. In the absence of "any medical evidence" the appeal would be determined on the papers. No medical evidence being on the file by the due date, the FTTJ decided the appeal on the papers, dismissing the appeal.
3. The appellant sought permission to appeal. This was granted by Judge of the First-tier Tribunal P J M Hollingworth on 9 August 2016 on the ground that there was on the Tribunal file a faxed letter from Epsom and St Helier Hospital dated 11 February 2016 and it was arguable that the decision should not have been made on the papers, given the FTTJ's direction.
4. Thus the appeal came before me.
5. Mr Clarke accepted that the appellant's representative had faxed the tribunal prior to 15 February 2016 medical evidence relating to the appellant's admission to hospital on 11 February 2016. He accepted the FTTJ's decision to decide the hearing on the papers was a procedural error and material, given the direction of the FTTJ that the matter would be decided on the papers if no medical evidence were produced.
6. I agree with the parties that the decision of the FTTJ contains a procedural error: there is on file a faxed letter from those representing the appellant submitting a letter from the Epsom and St Helier Hospital dated 11 February 2016. This fax was transmitted on 15 February 2016 and was thus sent in accordance with the directions of the FTTJ. The FTTJ should not have decided the appeal on the papers. It was procedurally unfair for a hearing on the papers to take place, given the direction of the FTTJ.
7. The appellant produced for the hearing before me fresh evidence in support of his appeal. The respondent's representative did not object to this additional evidence being adduced but sought time to consider it. Both representatives submitted that the appropriate course was for the matter to be remitted to the First-tier Tribunal for a fresh hearing. I do not disagree and direct accordingly.
8. In summary, the decision of the FTTJ contains a procedural error which amounts to an error of law; it is material to the outcome and the decision must be set aside for the matter to be decided afresh.
Decision
9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ Nightingale.
10. No anonymity direction was made in the First-tier Tribunal but given my reference to the appellant's admission to hospital, such a direction is appropriate now.

A M Black
Deputy Upper Tribunal Judge Dated: 3 October 2016

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black
Deputy Upper Tribunal Judge Dated: 3 October 2016
DIRECTIONS

1. Any further documentary evidence relied upon by either party is to be filed with the Tribunal and served upon the other party by no later than 14 days before the date of the hearing in the First Tier Tribunal.

2. The appeal is listed at Hatton Cross with a time estimate of two hours to be heard at 10.00 am on ?????????.

3. A Bengali interpreter is required.

A M Black
Deputy Upper Tribunal Judge Dated: 3 October 2016