Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20198/2015

THE IMMIGRATION ACTS

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

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

MUHAMMAD IMRAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan who appealed against the decision of the respondent to refuse a residence card under the Immigration (European Economic Area) Regulations 2006. His appeal against that refusal was dismissed by Judge of the First-tier Tribunal A E Walker ("the FTTJ") in a decision promulgated on 8 December 2015.
2. No anonymity direction has been requested and none is required.
3. The appellant sought permission to appeal but the First-tier Tribunal refused to admit the application, having refused to extend time for the out of time application. The appellant applied to the Upper Tribunal and permission was granted by Upper Tribunal Judge Grubb in the following terms:
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3. The grounds are arguably made out that the Judge failed to consider a bundle sent to the Tribunal by recorded delivery and received on 8 October 2015. The determination (decided without a hearing) was prepared on 3 December 2015 and promulgated on 8 December 2015. A recorded delivery slip showing posting on 7 October 2015 and a 'tracking' document stating (whatever was sent) was delivered from the Central Leicester delivery office are enclosed with the grounds. The FtT's back office is in Leicester. The fact that the file does not contain the bundle does not demonstrate that a bundle was not received by the Tribunal. It is equally consistent with it having been received but, as can happen, it not being linked to the file.
4. There is an arguable procedural irregularity which warrants consideration by the UT.
5. For these reasons, permission to appeal is granted."
4. Thus the appeal came before me today.
5. The appellant did not attend the hearing. I was satisfied that he had been served with a notice of hearing at the address he cited in the application to this Tribunal for permission to appeal. No request for an adjournment has been received. I considered adjourning the hearing of my own motion but considered it was in the interests of justice and fairness that the hearing should proceed in the appellant's absence, particularly as the appellant had lodged a copy of his bundle and evidence of posting with his applications made to the First-tier Tribunal and to this Tribunal for permission to appeal.
6. For the responden,t Mr Clarke submitted the copy documents produced by the appellant as proof of posting were deficient for the following reasons: the postcode cited as the address for delivery of the appeal bundle was not the same as that used by the appellant when he sent his bundle of documents to the First-tier Tribunal in support of his application for permission to appeal. The box numbers were also different. There was no explanation for this. In addition, the photocopy of the proof of posting did not identify the address to which the item was to be delivered; nor did the screenprint identify the delivery address.
7. I disregard the fact that the bundle purportedly sent to the FTT for the appeal hearing is still not on the Tribunal file; this could be due to error and does not demonstrate the bundle had not been sent by the appellant as he claims.
8. The appellant has not provided the original proof of posting. There are a number of photocopies on the Tribunal file but none of these show a complete copy of the proof of posting. The photocopy of the document which cites the date of posting does not also cite an address for delivery. The address for delivery is on a second photocopied page. I give no weight to the fact that the postcode on the proof of posting document is not the same as that used by the appellant to send his appeal bundle to the FTT: I take judicial notice of the fact that the postcode cited on the second photocopied page of the proof of posting is that to which documents for appeals to the FTT should be sent. However, it remains the case that, in the absence of the original documents, it is not clear why the proof of posting has been copied on two different pages when it constitutes one document. Nor is there any explanation as to why the item was purportedly sent from London when the appellant lived in Rochdale at the time. I note the screenprint showing a delivery by the central Leicester delivery office but this does not cite the delivery address and given that neither of the copied documents which cite the date of posting/delivery and the Post Office's bar code also cite the delivery address, I am unable to find that these photocopies demonstrate the appellant had sent his bundle of documents to the First-tier Tribunal to arrive, as directed, "before 8 October 2015".
9. For these reasons, I am unable to find there was a procedural irregularity such as to amount to an error of law. It was appropriate for the FTTJ to determine the appeal in the absence of the appellant's bundle.
Decision
10. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
11. I do not set aside the decision.

Signed Date 29 September 2016

Deputy Upper Tribunal Judge A M Black