Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17239/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Wednesday 28 September 2016
On Friday 30 September 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR BELAL AHMED SHOPON
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Simret, Counsel instructed by Hamlet solicitors LLP
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION
Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Widdup promulgated on 4 January 2016 ("the Decision"). By the Decision, Judge Widdup dismissed the Appellant's appeal against the Respondent's decision dated 23 April 2015 refusing him further leave to remain as a tier 4 student on the basis that he had failed to provide a CAS.
2. The main point at issue before me and which led to the grant of permission to appeal is whether Judge Widdup erred in law by accepting that the Respondent had complied with the rules of service in relation to her letter dated 17 February 2015 ("the February letter") which notified the Appellant that he had sixty days to provide a further CAS in relation to his application for leave to remain as a student before the application would be decided.
3. This matter came before me initially at a hearing on 12 July 2016. In my decision promulgated on 14 July 2016, I accepted that the Judge had erred in law in that respect. My decision which explains the basis of that error of law is included as an appendix to this decision for ease of reference. However, having found an error of law, I indicated that I would only set aside the Decision if I were persuaded that the error of law was material. If the Respondent were able to prove that the February letter was both sent and received by the Appellant then the error would not be material and I would not set aside the Decision on that account. I therefore gave directions for evidence to be produced as to service.
4. The factual position following compliance with those directions is as follows. The Respondent has produced a note from her electronic database ("the CID note") which states that the February letter was sent on 16 February 2015 and provides a recorded delivery number. Both parties have checked that recorded delivery number. It is common ground that the Post Office track and trace site has no information that an item with that recorded delivery number has been delivered or signed for. The Applicant says that he did not receive it.
5. The Appellant's solicitors say in their written submissions that they have made a telephone enquiry of Royal Mail customer services department. That department has apparently indicated that they have no record of that item having been provided to them for delivery. There is no witness statement confirming that and the letter which it is said in the submissions would be forthcoming from Royal Mail has not been provided.
6. The Respondent asks that I accept the CID note as evidence that the letter was sent. The Respondent also asserts that the Appellant's bare denial of receipt of the February letter is insufficient as evidence and asks me to infer from the fact that the Appellant sought a "sixty days letter" after receipt of the decision dated 23 April 2015 that the Appellant had in fact received the February letter and was using the excuse of non-receipt of that latter letter in order to engineer an extension of his leave because he had been unable to find another sponsor.
Submissions
7. Mr Simret relied on the case of R v Secretary of State for the Home Department and another ex parte Anufrijeva [2003] UKHL 36. In that case, the House of Lords decided that a decision takes effect only when it is communicated (see in particular [30] of the judgment in the speech of Lord Steyn). He submitted that I could not infer from the CID note that the item had been posted in circumstances where there was no witness statement from the Respondent confirming postage and the Royal Mail had indicated that it had not received the item. That was the more so since it was accepted on both sides that there was no independent evidence of delivery and the item had not apparently been returned undelivered.
8. Mr Tarlow asked me to infer from the CID note that the item had been posted. He accepted though that the Respondent was in some difficulties in relation to proof of delivery.
Decision
9. I do not accept Mr Simret's submission that I should find that there is insufficient evidence that the February letter was posted. It is difficult to see what evidence the Respondent could provide beyond the CID note other than perhaps a witness statement from the maker of that note who could confirm only that he/she had put the item in the post tray for posting. In a large organisation such as the Home Office, posting is likely to be carried out by collection by Royal Mail. It is not likely that individual items are taken physically to the post office and placed in a post box as they would be by a firm of solicitors. It would place an enormous burden on the Respondent if she were required to prove posting of items in that fashion. The CID note is sufficient to support a prima facie case that the item was sent.
10. However, in this case there is simply no evidence of delivery. The Appellant has indicated that he did not receive the item. Royal Mail has not been able to supply evidence that it was delivered. Whether that is because it did not reach Royal Mail or whether it is because it was lost in the postal system is not something which I need to decide. There is simply no evidence of delivery.
11. I do not accept what the Respondent says in her letter dated 13 July 2016 about the reason why the Appellant asked for the sixty days letter following receipt of the 23 April 2015 decision. That is equally consistent with his assertion that he had not received the February letter and was therefore simply asking for that to which he believed he was entitled.
12. In those circumstances, I accept Mr Simret's submission that the Respondent is unable to prove service of the February letter or, put another way, that the decision to permit the Appellant sixty days to find an alternative sponsor before his application was considered has not been shown to be communicated to the Appellant.
13. For those reasons, I accept that the error of law which I set out in my decision of 14 July 2016 is material and I set aside the Decision. I go on to re-make the decision.
14. Mr Tarlow accepted that, if I found that the February letter had not been validly served, the effect is that the Respondent's decision is not in accordance with the law and I should allow the appeal on that basis. I accept that submission and I therefore allow the Appellant's appeal on the basis that the Respondent's decision was not in accordance with the law for failure to follow her policy. The consequence is that the Respondent will be obliged to provide the Appellant with a further sixty days in which to find an alternative sponsor.
15. Mr Simret raises a further point about the Decision. He says that the effect of my finding that the Respondent's decision is not in accordance with the law is that the Appellant continues to have leave because his application made in time on 22 September 2014 now remains outstanding. He submits that, taking into account that leave, the Appellant has been in the UK lawfully for ten years. He points to [20] to [22] of the Decision where the Judge found that the Appellant could not succeed under Article 8 ECHR. He submitted that those findings too amounted to an error of law given the length of the Appellant's residence. However, he was unable to point me to any evidence as to the Appellant's private life formed in the UK which was before the Judge.
16. Judge Widdup properly directed himself in accordance with section 117B Nationality, Immigration and Asylum Act 2002 when finding that little weight could be given to the Appellant's private life because his status (as a student) was precarious. The Appellant could not meet the Rules in relation to his private life. There is no error in the Judge's finding that the Appellant could not succeed on Article 8 grounds.
17. Mr Simret submits that, since I have set aside the Decision and the Appellant has been in the UK lawfully for ten years, he is now entitled to indefinite leave to remain. I am unable to make any finding in that regard. There is no information before me as to the Appellant's immigration history. Paragraph 276B requires the Appellant to provide evidence as to his English language ability and to pass the knowledge of life test in the UK. He must also satisfy the Respondent as to his suitability and that he has spent a period of ten years continuously and lawfully in the UK. If he is able to meet those requirements, he can make a further application to the Respondent at the appropriate time.

DECISION
The First-tier Tribunal decision promulgated on 4 January 2016 involved the making of an error on a point of law. I set aside that decision.
The Appellant's appeal is allowed on the basis that the Respondent's decision is not in accordance with the law for failure to follow her policy of allowing the Appellant sixty days to find an alternative sponsor.

FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable.

Signed Date 29 September 2016

Upper Tribunal Judge Smith

APPENDIX

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17239/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Tuesday 12 July 2016

?????14 July 2016???

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR BELAL AHMED SHOPON
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Simret, Counsel
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

ADJOURNMENT DECISION AND DIRECTIONS
1. This appeal was listed before me on Tuesday 12 July 2016 in order to consider whether there is an error of law in the decision of First-tier Tribunal Judge Widdup promulgated on 4 January 2016 ("the Decision"). Judge Widdup accepted that the Respondent had complied with the rules of service in relation to her letter dated 17 February 2015 which notified the Appellant that he had sixty days to provide a further CAS in relation to his application for leave to remain as a student. The Judge so found on the basis that paragraph 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 ("the 2000 Order") applies. Permission to appeal was granted to the Appellant by First-tier Tribunal Judge Pooler on 3 June 2016 on the basis that it was arguable that the provisions for service in the 2000 Order do not apply.
2. Mr Simret submitted that the 2000 Order does not apply because paragraph 8ZA of that order relates only to a decision refusing leave, refusing to vary leave or varying leave under the Immigration Act 1971. The 17 February 2015 letter which is at the heart of the issue in this case is none of those things. It is a letter indicating that the Home Office was suspending consideration of the Appellant's application for sixty days because the licence of the sponsor on whom he relied in his application had been revoked.
3. Mr Kotas did not contest this submission and, having considered paragraph 8ZA, it is clearly correct. However, as Mr Kotas noted, that is not the end of the matter as the Appellant still needs to show that the error of law disclosed by [17] and [18] of the Decision is material. In that context he produced a note from the Respondent's electronic database (CID) showing that the letter affording the Appellant sixty days was sent on 16 February 2015 and gave a date to submit a further CAS of 18 April 2015 (sixty days). The CID note shows a recorded delivery number. However, no check had been made of the Post Office Track and Trace system in order to verify delivery (although Mr Kotas did note that there was nothing on file to show that the letter had been returned undelivered).
4. Following further exchanges, both representatives agreed that in fairness to the Appellant, the hearing should be adjourned for the parties to check the position on delivery. Thereafter, the parties will need the opportunity to make submissions in writing about the impact of what the evidence shows on the materiality of the error. Those submissions should also deal with the issue of who bears the burden of proof and to what standard. The parties should include in those submissions their proposals for the disposal of the error of law issue in light of what the evidence shows and whether a further hearing is required to deal with that issue and any remaking or whether it can be dealt with on the papers.
5. For the above reasons, I granted an adjournment on the basis of the following directions:-
(1) By no later than 4pm on Tuesday 26 July 2016, the Respondent and the Appellant are to make enquiries of the Post Office Track and Trace system to ascertain how and when the letter of 17 February 2015 (posted on 16 February: recorded delivery number KX025759675GB) was delivered and are to communicate the result of such enquiry to the other party with a view to agreeing the factual position.
(2) By no later than 4pm on Tuesday 9 August 2016, the parties are to file and serve on each other submissions in writing setting out their position following the result of the enquiries at (1) above. That document should also encompass submissions relating to the relevant burden and standard of proof, the materiality of the error identified at [3] above and how it is proposed the appeal should proceed in relation to the error of law and any remaking of the Decision. The parties should also notify the Tribunal at the same time whether a further hearing is required or whether the remaining issues can be dealt with on the papers. Depending on the content of those submissions, the appeal will either be relisted for a further hearing or will be determined on the papers after 12 August 2016.
(3) Either party may apply to vary the above directions or seek further directions in writing to me on notice to the other party.

Signed Date 12 July 2016

Upper Tribunal Judge Smith