Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16164/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 11 October 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

[O O]
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Alam, Counsel, instructed by Wilsons Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of Judge of the First-tier Tribunal Flynn whose promulgated decision of 18 January 2016 dismissed the Appellant's appeal against the Respondent's decision of 02 April 2015 to remove her from the UK under s.10 of the Immigration and Asylum Act 1999 (as it was) on the basis that she was an illegal entrant or a person subject to administrative removal.
2. The Appellant is a national of Nigeria, date of birth 26 September 1982. She entered the United Kingdom on 30 December 2006 as a student. She had a daughter born in the United Kingdom on 14 March 2008, and a son born on 3 November 2009. Throughout this time she had leave to remain in the United Kingdom. On 8 December 2009 she made an application for leave to remain outside of the immigration rules, which was rejected on 11 February 2010. The Appellant subsequently made further applications for leave to remain which were rejected, as were her requests for reconsideration of those decisions. On 2 October 2014 the Appellant was issued with a notice informing her of her immigration status in the United Kingdom and her liability to detention and removal. On the same date the Secretary of State issued a one-stop notice to the Appellant. The Appellant's response was received on 28 January 2015. Following receipt of this response the Respondent made a decision on 2 April 2015 to refuse the Appellant's application for leave to remain on human rights grounds.
3. For much of this time the Appellant was represented by Wilsons Solicitors. There is a letter of authority contained in the Upper Tribunal bundle dated 18 July 2013. Mr Duffy, at the appeal hearing, confirmed that the Respondent had identified Wilsons Solicitors as the Appellant's legal representatives since sometime in 2013. The decision that was the subject of the appeal was in fact addressed to Wilsons Solicitors at 113 Wigham House, Wakering Road, Barking, Essex, 1G11 8QN. The IAFT-1 application form (the form used to initiate an appeal against the Respondent's decision to the First-tier Tribunal) was signed and dated by Wilsons Solicitors on behalf of the Appellant on 21 April 2015. Section 5 of this form contained details of Wilsons Solicitors including their address at Wigham House. The correspondence address, as required under section 1 of the form, gave the same address (i.e. 113 Wigham House).
4. Despite being in possession of this information the First-tier Tribunal does not appear to have had Wilsons Solicitors on record as the Appellant's representatives. The First-tier Tribunal did not in fact have any representative on record as representing the Appellant. It is unclear why this is so. It may be that Wilsons Solicitors did not provide a letter of authority to the First-tier Tribunal. The reasons however remain unclear and on the evidence before me I am unable to reach any conclusion as to why the First-tier Tribunal did not have Wilsons Solicitors on record.
5. On 12 November 2015 the First-tier Tribunal issued a Notice of Hearing. This Notice of Hearing indicated that the Appellant had no legal representative. The address to which the Notice of Hearing was sent was "Ms [O O], 113 Wigham House, Wakering Road, Barking, Essex, IG11 8QN." The Notice of Hearing indicated that the appeal was to be held at Taylor House on 5 January 2016 at 10 AM.
6. There was no appearance by the Appellant or any representative at the appeal hearing. At paragraphs 2 and 3 of her decision the judge stated:
"The Appellant did not appear at the hearing and no one attended on her behalf. I was satisfied that notice of the date, time and place of hearing was sent to the Appellant on 12 November 2015 and it was not returned to the tribunal undelivered. No explanation was provided for the failure of the Appellant to appear and no application was made for an adjournment. The Respondent did not seek an oral hearing.
I was accordingly satisfied that it was appropriate to decide the appeal without an oral hearing in accordance with rule 25 of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum Chamber) Rules 2014 and I proceeded to do so."
7. The judge then recounted the Appellant's immigration history and the reasons given by the Respondent for rejecting her application. In the judge's conclusions she noted the absence of any evidence before her, contrary to directions issued by the Tribunal on 12 November 2015, and proceeded to decide the appeal solely on the basis of the evidence that was already on the file. At paragraph 14 of her decision the judge found the failure of the Appellant to submit any evidence or to appear at the oral hearing constituted a clear indication that she accepted that the Respondent's decision was in accordance with the law. The judge briefly concluded that there was nothing before her to suggest that either the Appellant or her children met the requirements of paragraph 276ADE or Appendix FM. The judge consequently dismissed the appeal under the immigration rules. The judge then briefly considered the appeal outside of the immigration rules taking into account the factors identified in section 117B of the Nationality, Immigration and Asylum Act 2002 and applying the five-step test as laid down in Razgar [2004] UKHL 27. The judge concluded that the interference in the private life rights of the Appellant and her children was not sufficient to engage Article 8, and that any such interference was, in any event, proportionate.
8. The grounds of appeal, whilst discursive, contended that the Appellant did not have a fair hearing as neither she nor her solicitors had received the Notice of Hearing. The grounds stated that the solicitor's offices were situated in a serviced building with numerous offices and only correspondence sent to 'Wilsons Solicitors' would be allocated to the solicitor's office. In granting permission to appeal Upper Tribunal judge McWilliam stated, "? it is arguable that there is a procedural irregularity in that the notice of the hearing and the decision of the FTT were sent to an address that the FTT recorded as the Appellant's address whereas it appears to be the address of her solicitors. It was not clearly addressed to a legal firm and I note that the solicitors are in the sixth floor of the building, which was not made clear in the notice. The application to the FTT was very much out of time, but it is arguable that the decision of the FTT was not properly addressed to the Appellant or her solicitors."
9. Mr Alam, who was on record as being the barrister representing the Appellant, was occupied in another hearing room when the appeal hearing was due to start. Having regard to the documentation on the Tribunal file, I was satisfied that, even despite Mr Alam's absence, I was able to deal justly and fairly with the appeal in Mr Alam's absence and in accordance with the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008. I informed Mr Duffy that the Notice of Hearing sent on 12 November 2015, whilst sent to the address provided by the Appellant for correspondence, had her name in the first line and did not make any reference to 'Wilsons Solicitors'. The Notice of Hearing indicated that there was no representative on record. Mr Duffy, fairly in my opinion, accepted that there was a reasonable probability that the Notice of Hearing, because it was not addressed to Wilsons Solicitors, may not have been received by them, it being sent to an address in a serviced building with various different offices. It is clear that if the single notice of hearing was not received by Wilsons Solicitors, the Appellant herself would have been unaware of the time, place and date of her appeal hearing.
10. I am consequently satisfied that, through no fault of her own, the Appellant was unaware of the hearing of her appeal before the FTT. The importance of attending ones appeal hearing, and of providing evidential support in order to advance one's arguments, cannot be understated. I am satisfied that a procedural impropriety has occurred in these proceedings that prevented the Appellant and her representatives from attending the hearing and giving evidence and making submissions. I hasten to add that this is no criticism of the FTT judge. The judge was fully entitled to conclude, on the evidence before her, that the Appellant had been properly served with the notice of hearing. The FTT judge was not however aware of the problems with the service of the Notice of Hearing as outlined above.
11. For the reasons given above I am satisfied that the First-tier Tribunal decision is vitiated by a material error of law on the basis that there has been a procedural impropriety. The matter will be remitted to the First-tier Tribunal for a fresh hearing before a judge other than judge of the First-tier Tribunal Flynn.
Notice of Decision
The First-tier Tribunal decision is vitiated by a material error of law.
The matter will be remitted for a full fresh hearing at Hatton Cross before a judge other than judge of the First-tier Tribunal Flynn.
No anonymity direction is made.

Signed Date
Upper Tribunal Judge Blum 11 October 2016