Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13712/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 14th October 2016
On the 27th October 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR RIZWAN AHMED SYED
(no anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance (letter submitted)
For the Respondent: Mr Walker (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Moore promulgated on the 21st April 2016, in which he dismissed the Appellant's appeal against refusal of his application for leave to remain in the United Kingdom, both under the Immigration Rules and on Human Rights grounds.
2. Within the Grounds of Appeal it is argued, inter alia, that the First-tier Tribunal Judge said at [14] that the Appellant had not submitted any witness statement in support of his appeal, but that he had submitted a statement to the Tribunal by means of recorded post with a tracking number of KP440656042GB on the 7th March 2016 which was received by the Tribunal on the 10th March 2016. It is argued that the Judge failed to thereby take account of that evidence. Within the second ground it is argued that although he is a temporary migrant in the UK, neither the Respondent nor the First-tier Tribunal properly considered the reason for the non-completion of the Appellant's studies, and he questioned the fairness of the decision made given the revocation of the sponsor's licence following the case of Patel (Verification of Sponsor Licence - Fairness) India [2011] UKUT 00211 (IAC). In the third ground of appeal, it is argued that although the Appellant was supported by family members in India, the basic reason for them supporting him was that they were supporting his studies in the UK.
3. Permission to appeal was granted by First-tier Tribunal Judge Kelly on the 19th September 2016, in which he found that there was a signed (but undated) document attached to the file running to 14 paragraphs which was headed "Witness Statement of the Appellant" and that it was arguable in that in such circumstances the Judge failed to have regard to material evidence when considering the appeal on the papers and that whilst consideration of the Appellant's witness statement may not ultimately have affected the outcome of the appeal, justice must not only be done but also manifestly be seen to be done. He said that the other grounds stood or fell upon the arguable ground that the Tribunal failed to have regard to the witness statement. He therefore granted permission to appeal.
4. The Appellant had sent a letter dated the 11th October 2016 to the Tribunal, which was received by the Upper Tribunal on the 12th October 2016, requesting that the appeal be adjourned or considered on the papers, due to the fact that he was unable to attend to the appeal hearing because he was suffering from severe back pain and what he described as 'stressful mental depression'. He stated that he was in the process of being further diagnosed and would submit a sick note and further investigation reports to the Tribunal as soon as practically possible. He did, however, submit evidence that he had attended at a walk-in clinic on the 10th October 2016, where he had received a 15 minute consultation, but had seemingly also been prescribed Lansoprazole.
5. However, despite the request for the adjournment, Mr Walker on behalf of the Secretary of State quite properly conceded that in fact the adjournment was not necessary, and that in fact there was a material error in the decision of First-tier Tribunal Judge Moore, in terms of him having failed to consider the witness statement of the Appellant in reaching his decision, after I had shown him and he had considered the document on the file referred to by Judge Kelly, which was a signed but undated statement of the Appellant running to 14 paragraphs, which was entitled "Witness Statement of the Appellant".
6. Although in this regard, within the Rule 24 response, it was argued by the Secretary of State that the Judge had properly directed himself and that the decision would have been the same irrespective of any evidence given by the Appellant in a witness statement, in circumstances where the Appellant had been in the UK less than 7 years and his private life would have attracted little weight, and in respect of which it was inconceivable that the Judge would have allowed the appeal on Human Rights grounds, having considered the statement, Mr Walker on behalf of the Secretary of State, did not rely on the Rule 24 reply and conceded that the Judge's failure to consider the Appellant's witness statement in this case did give rise in fact to a material error of law, and that the decision of First-tier Tribunal Judge Moore should be set aside and the case remitted back to the First-tier Tribunal for a re-hearing de novo before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.
7. In light of the concession quite properly made by Mr Walker on behalf of the Secretary of State, I do find that regrettably, the decision of First-tier Tribunal Judge Moore does contain a material error of law, in that he quite clearly stated at paragraph 14 of the decision that there was no witness statement from the Appellant, and yet, contained within the file, was a signed statement from the Appellant himself running to 14 paragraphs, which explained the basis on which he considered that he should be granted leave to remain in the United Kingdom. I do not consider that it could be said that having failed to consider that document, that the decision would have been the same irrespective, as to whether or not the Judge had considered that document or not, and as quite properly conceded by Mr Walker, I do consider that that does amount to a material error of law, in respect of the Judge having failed to consider the Appellant's witness statement. I therefore do set aside the decision of First-tier Tribunal Judge Moore and remit the case back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.
Notice of Decision

The decision of First-tier Tribunal Judge Moore does contain a material error of law and is set aside. I allow the Appellant's appeal.

I make no Order in respect of anonymity, no such Order having been sought before me.

I remit the case back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.

Signed
R F McGinty
Deputy Upper Tribunal Judge McGinty Dated 14th October 2016