Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18227/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 29 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR SALIM MAHMUD
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Singer, counsel instructed by Paul John & Co Solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Kennedy, promulgated on 24 February 2016. Permission to appeal was granted by Upper Tribunal Judge Martin on 9 August 2016.

Background
2. On 6 June 2014, the appellant applied for further leave to remain as a Tier 4 (general) student. His application was refused on 27 April 2015 on the basis that on that date the proposed Tier 4 sponsor, namely Superior College, was not listed on the Tier 4 Sponsor Register. The decision indicated that the appellant was informed of this on 20 February 2015 and allowed 60 days to obtain a new sponsor and Confirmation of Acceptance for Studies (CAS), which he had not done. Consequently, no points were awarded for a CAS or maintenance.
3. At the hearing before the First-tier Tribunal, the respondent's representative served a copy of an email and two letters said to show that the appellant had been served with a "60-day letter," which he denied receiving. The appellant's evidence was that the respondent had neglected to update his address and that he received the 60-day letter upon returning to his old address after the said period of time had elapsed. The judge found that it was likely that the appellant received the 60-day letter and was willing to turn a blind eye to its contents. Furthermore, the judge found that Immigration (Leave to Enter and Remain) (Amendment) Order 2013 had no application to a 60-day letter as it was not a notice granting or refusing leave.
Grounds of appeal
4. Permission to appeal was sought on two bases. Firstly, it was argued that while regulation 8ZA, did permit service by email, this did not apply to a 60-day letter because it was not a decision to vary or refuse leave to remain. It was said that the judge misunderstood the consequence of the aforementioned points which formed part of counsel's submissions. Secondly, the judge's finding that the appellant received the emailed 60-day letter was unreasonable and his reasons for rejecting the appellant's denial unsound. The point was made that the appellant had been presented with this evidence on the day of the hearing and did not have the opportunity to "conduct a forensic analysis of his email account." The judge's finding that the appellant was content to leave his immigration status unresolved was contrary to the evidence before the judge of his contact with the Home Office. The judge failed to consider that the appellant would have had no reason to ignore a 60-day letter.
5. Permission to appeal was granted for the reasons sought in the grounds.
6. The respondent opposed the appeal in the Rule 24 response to the grounds of appeal received on 26 August 2016. An indication was given that the respondent was entitled to serve the 60-day letter by email.
The hearing
7. In advance of the hearing, a speaking note was submitted on the appellant's behalf, in which it was said that if the appellant had been served with the decision by email, the 60-day timeframe had expired.
8. When this matter came before me, it became apparent that neither representative had seen the email message of 19 February 2015. Upon having sight of it, Mr Singer no longer sought to rely on the submission made in his speaking note, which was based on a misapprehension of the judge's findings. Instead, he argued that the said email purported to provide the appellant with a letter which had yet to come into existence.
9. Mr Singer argued that in any event, the respondent could not rely on regulation 8ZA of the 2000 Order in relation to a document which was not a grant, refusal or variation of leave. He referred me to several authorities, including R (on the application of Mahmood) v SSHD (effective service - 2000 Order) IJR [2016] UKUT 00057 (IAC).
10. Mr Singer further argued that even if the 60-day letter was a decision, the respondent had yet to exhaust the options available for postal service, given that the judge accepted that the appellant informed the respondent of his new address and service by post was attempted only at the old address. With regard to the reliability of the email said to have been sent to the appellant, he asked me to note that it was unclear what document was attached and that there was no icon or other indication on the face of the email that there was in fact an attachment. Ultimately, the respondent had not discharged the burden of proving service of the 60-day letter on the appellant.
11. Ms Ahmed argued that the grounds of appeal misled the judge granting permission. She made two points, firstly that email service was effective as the appellant had confirmed that it was his correct email address and secondly that the 60-day letter was a grant of leave.
12. In response, Mr Singer emphasised that the appellant already had leave to remain, under section 3C of the 1971 Act, when the 60-day letter was composed because he had made an in-time application for further leave to remain in 2014. The 60-day letter referred to suspension of consideration on that application and was not a decision on variation of leave.
13. At the end of the hearing, I indicated that the First-tier Tribunal Judge made a material error of law and set aside the decision in its entirety. My reasons are as follows.
Decision on error of law
14. Firstly, the judge erred in finding that the email of 19 February 2015 which was said to have enclosed a 60-day letter dated 20 February 2015, was served on the appellant. This scenario clearly makes no sense. The appearance of the email also cast doubt on its reliability owing to the absence of any clarity as to what was said to be attached or any icon or symbol indicating that there was indeed an attachment.
15. Putting the concerns as to reliability of the email aside, the letter said to be attached was not a grant, variation or refusal of leave to remain and while the judge appeared to recognise that the regulation 8ZA had no application, he erred in leaping to the conclusion that notification by email was therefore effective for correspondence not falling within the terms of the said regulation.
16. In addition, the judge's reasons for finding that the appellant received the email, notwithstanding his rebuttal of that claim, had the effect of reversing the burden of proof given that the respondent had yet to establish that service of the email and attachment was effected.
17. Lastly, the appellant provided a detailed account of having informed the respondent of his change of address (which the judge accepted at [13]) and of having spoken to a named individual in the Home Office about his sponsor's loss of a licence at an early stage. The judge's conclusion at [14] that the appellant was "willing to turn a blind eye" to his problems was, therefore, against the weight of the evidence and unfair. In this too he materially erred.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside, in its entirety.
The appeal is remitted to the First-tier Tribunal, de novo, to be heard at Hatton Cross with a time estimate of 2 hours (not before Judge Kennedy).

Signed Date: 27 September 2016

Upper Tribunal Judge Kamara