Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/20373/2015
ia/20377/2015
ia/20381/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th August 2016
On 24th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

Amarpreet [K] (first Appellant)
Jatinder [S] (second Appellant)
[s k] (third Appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms N. Ahmad of Counsel
For the Respondent: Mr I. Jarvis, Home Office Presenting Officer

DECISION AND REASONS

The Appellants
1. The Appellants are all citizens of India. The first Appellant who I shall refer to as the Appellant was born on [ ] 1984. The second Appellant, who I shall refer to as Mr [S] is her husband and was born on [ ] 1983. The third Appellant, [SK] is the couple's child and he was born on [ ] 2011. The Appellants appeal a decision of Designated Judge Manuell sitting at Richmond on 5th January 2016 in which he dismissed the Appellants' appeals against decisions of the Respondent dated 18th May 2015. Those decisions were to refuse to vary by extending the Appellant's existing leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant and the second and third Appellants' leave as her dependants. Their original applications were made on 10th September 2014.

2. The Respondent refused the applications because the Appellant had failed to provide a CAS (Confirmation of Acceptance for Studies letter) from a licensed Sponsor. The CAS produced with her application was assigned by University Tutorial College which was not on the register, its licence having been revoked. The Appellant was informed of this on 12th March 2015 and granted 60 days to obtain a new Sponsor and CAS. The Appellant did not do so and thus did not meet the Immigration Rules. As she had not provided a valid CAS the Respondent also decided that the Appellant had failed to meet the maintenance requirements. All three applications were refused.

3. The Appellant appealed against the Respondent's decision on form IAFT-1 dated 29th May 2015 giving as her representatives Messrs Maalik & Co in Southall. The grounds of appeal were brief. The essence was that the Appellant averred that she had provided the relevant documents in support of her application and the Respondent could have requested further documents if required. The Respondent's decision was not therefore in accordance with the law. Nor had the Respondent given any consideration to the Appellant's Article 8 rights. The Appellant was said to be in the process of obtaining further documentary evidence to support her appeal and such evidence "will be provided in due course". The appeal was described as "a holding appeal in order to allow the Appellant adequate time to submit all available information and documentary evidence in relation to her appeal".

4. Some time later on 17th November 2015 the Tribunal sent out a notice of hearing on form IA37 to the Appellant and to Maalik & Co indicating that the Appellant's appeal would be heard on Tuesday 5th January 2016 at 10 a.m. at Richmond Magistrates' Court, The Court House, Parkshot, Richmond, Surrey TW9 2RF. The Appellant was asked to ensure that she arrived fifteen minutes prior to the hearing. Following the issue of form IA37 the Tribunal received a letter from Maalik & Co dated 25th November 2015 in which they indicated they were no longer instructed by the Appellants.

The Proceedings at First Instance

5. When the matter was called on for hearing on 5th January there was no appearance by the Appellants nor any application made to Designated Judge Manuell in person for an adjournment. No evidence had been filed on the Appellants' behalf which was a breach of the Tribunal's standard directions. The Designated Judge was satisfied that notice of the time, date and place of the hearing had been duly served on the Appellants and the matter could be fairly and justly determined in their absence.

6. The Designated Judge held that there was no dispute that University Tutorial College had had its licence revoked and thus the Appellant's application faced refusal. The Appellant had been granted 60 days to obtain a new and compliant CAS but had not done so. There was no discretion that could have been exercised by the Respondent in the Appellant's favour as there were no circumstances which "could be sensibly described as compelling". The appeal under the Immigration Rules failed because the Appellant had failed to produce a valid CAS. The decision was thus in accordance with the law for the reasons he had explained. As to Article 8, there would be no interference with the Appellants' family life as they would be removed together. There was no evidence the Appellant could not study elsewhere or leave the United Kingdom and make a fresh entry clearance application if she wished to pursue further studies in this country. The Article 8 claim failed on proportionality grounds.

The Onward Appeal

7. The Appellants appealed against the decision arguing that their new solicitors Messrs Farani-Javid-Taylor Solicitors had made an application for an adjournment of the 5th January date six days before on 30th December 2015. That application for an adjournment had been received by the Tribunal who had acknowledged receipt. For whatever reason that application had not been before the Designated Judge and therefore had not been considered by him. There was therefore a breach of procedural fairness in the Tribunal going ahead with the hearing when an application for an adjournment had been made but not dealt with by the Tribunal. There was also an error of law in the decision as the Designated Judge had failed to mention Section 117B(5)(a) of the Nationality, Immigration and Asylum Act 2002 when assessing the proportionality of the interference in the Appellant's Article 8 claim.

8. The application for permission to appeal came before Designated Judge Murray on 31st May 2016. She refused permission to appeal writing:
"The Judge had no adjournment request before him. It is clear from the evidence that although an adjournment request had been made an adjournment had not been granted so in these circumstances the Appellants or the Appellants and their representatives should have attended the hearing centre on the day of the hearing. They did not. There was no error made by the Judge when he heard the case in the Appellants' absence. The Judge correctly states that no CAS had been issued to the first Appellant so the application under the Rules could not succeed. The first Appellant had been given 60 days to obtain a CAS and had not done so. The decision was in accordance with the law. With regard to Article 8 the Judge dealt with this within the Rules. Relevant case law was quoted. The Judge's decision is properly explained and there was no good arguable case for considering Article 8 outside the Rules. Based on what was before the Judge there was no need to mention Section 117B. The Judge explained the Appellants' options at paragraph 12 of the decision [that the Appellant could make a fresh application in-country within 28 days without facing the danger of removal]. "
9. The Appellants renewed their application for permission to the Upper Tribunal pointing to the fact that Designated Judge Manuell did not have an application to adjourn before him. The applicant had produced fax transmissions and emails sent to the Tribunal and confirmation that the adjournment request had been received. An adjournment request made for the attention of the Judge was both faxed and emailed and should have been considered. There was no notice on the Appellants' solicitors' file that an adjournment had been refused. This was a simple case of the Tribunal being provided with documents which did not reach the Judge. The First-tier Judge should have noted this error and granted permission to appeal. The Appellant had taken substantial steps to ensure that an adjournment application was submitted to the First-tier. This was not a case where an adjournment request had been refused. It was a procedural error which was in breach of the overriding objective to deal with a case fairly and justly including ensuring so far as practical that the parties were able to participate fully in the proceedings.

10. Dealing with the substantive appeal, the grounds argued that the Judge had failed to carry out a Section 117 assessment which would have been in the Appellants' favour given that they were a well-educated family lawfully residing in the United Kingdom with no criminal convictions. In the case of Forman [2015] UKUT 00412 the Upper Tribunal had held that where the provisions of Section 117B arose, the decision of the Tribunal must demonstrate that the Section had been given full effect. The renewed application for permission to appeal came on the papers before Upper Tribunal Judge Allen on 28th June 2016. In a very brief decision he gave permission stating:
"It is arguable that the Judge's decision is flawed by procedural error since although he was unaware of it an adjournment had been made but no decision had been made on it."
The Hearing Before Me

11. Counsel for the Appellants submitted that the solicitors had written a letter to the Arnhem Support Centre in Leicester on 30th December 2015. That letter (a copy of which was in the court file) stated that Farani-Javid-Taylor had been instructed by the Appellants for the hearing on 5th January 2016 but they wish to make an application for an adjournment. They were not in a position to prepare and represent the Appellant on 5th January because her file had been misplaced. The solicitors had moved office and a large number of clients' files had been misplaced in the process. Although none of the files had been permanently lost and all would be properly allocated eventually, this would take four to six weeks. This request for an adjournment was being made as a matter of last resort, the solicitors having made their best endeavours to locate the Appellant's file. The alternative that the Tribunal should provide the solicitors with the papers would also take some time therefore the case was not ready.

12. The letter referred to Rule 21 of the Procedure Rules 2005 (which had been repealed by the 2014 Procedure Rules). The Appellant relied on the Upper Tribunal decision in Nwaigwe [2014] UKUT 00418. The question was whether the refusal of an adjournment deprived the affected party of his right to a fair hearing. Where an adjournment refusal was challenged on fairness grounds it was important to recognise that the question for the Upper Tribunal was not whether the First-tier had acted reasonably, rather the test to be applied was that of fairness. Was there any deprivation of the affected parties right to a fair hearing? If the Tribunal refused an adjournment request such decision could in principle be erroneous in law in several respects, failing to take into account material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test and acting irrationally. The letter sought an adjournment to the next available date after six weeks. The refusal of an adjournment would not be proportionate and should therefore be granted.

13. Counsel submitted that this request should have been put before the Designated Judge. Although Designated Judge Murray had said while refusing permission that the representatives should still have been at the hearing, nothing had been returned by the Tribunal stating that the adjournment was not granted. That was the reason why the solicitors did not attend. They did not know what had happened. The overriding objective applied. The Appellants were willing to attend and indeed wanted to attend. The case was not prepared on time as the solicitors took over the case late in the day. The representatives had not heard either way from the Tribunal. They were not told that the adjournment request had been denied. That resulted in the failure to attend. They had presumed that the information requesting the adjournment would be before the Judge hearing the appeal.

14. In reply, the Presenting Officer submitted that the case of Nwaigwe was not authority for the proposition that in every case in which the Appellant failed to obtain an adjournment there would be unfairness. In this case the Appellant and her representatives had failed to attend even though there was no indication that the adjournment had been granted. In any event it was a weak case. It was bound to fail under the Immigration Rules as the Appellant had no CAS and had put forward little information under the human rights claim. There was no procedural unfairness.

15. Finally in response Counsel argued that the merits of the appeal could not be determined without a hearing and this appeal did have merits. In any event the Appellant had the right to a fair trial under Article 6 (the Presenting Officer interjected at this point to say that Article 6 did not apply to immigration proceedings).

Findings

16. The Appellant had submitted what was described as a holding appeal against the Respondent's decision to refuse to vary leave back in May 2015. For reasons which are not entirely clear the Tribunal then sent out a notice of hearing approximately six months later in November 2015 indicating that the case would come up for a full oral hearing in two months' time, in January 2016. There is no doubt in this case that the Appellants have received all relevant notices sent to their home address in Southall. What does seem to have happened is that although they instructed Messrs Maalik & Co to file the original notice of appeal against the Respondent's decision, they did not continue to instruct that firm but, again apparently, very late in the day they approached another firm of solicitors, Messrs Farani-Javid-Taylor, possibly as late as the Christmas break.

17. Messrs Farani-Javid-Taylor applied for an adjournment. According to their letter of 30th December they were not in a position to represent the Appellants properly because they had mislaid the Appellants' file whilst moving offices. They did not say when this move had taken place, only stating that the head office had "recently moved". Thus to have a file in their name the Appellants must have instructed Farani-Javid-Taylor prior to the move whenever that was.

18. The solicitors wrote a letter and it appears sent a copy by email to the Tribunal's administrative office. I was shown on Counsel's laptop the copy of an email sent by the Customer Service Department of the Tribunal on 31st December acknowledging the solicitors' correspondence and saying that it would be dealt with in due course. This was only an acknowledgement. It was not even an indication that the adjournment request had been looked at by anyone.

19. Given that this was the holiday period and a relatively few days prior the hearing, it is not perhaps surprising that the letter of 30th December did not make its way before Designated Judge Manuell. As far as he was concerned the Appellants had failed to attend and there was no good reason why they had failed to attend.

20. The Appellants' argument in essence is that simply because an adjournment request had been made the case should not have proceeded. I cannot accept that argument. Unless and until the Appellants and/or their representatives were told that an adjournment request had been granted, it had not been granted. In other words unless and until they were told that an adjournment had been allowed the position was that there was to be no adjournment. The only sensible course of action which any competent solicitor would have taken in that eventuality was to have attended the hearing on 5th January and renewed the application for an adjournment orally. That was both the correct procedural course and also the only courteous course of action. These solicitors chose not to do so. They simply assumed that if they had written a letter asking for an adjournment it would be granted and there was no need for them to attend. That was if I may say an extraordinarily complacent attitude to take. No solicitor can properly assume that an application has been granted until they hear that.

21. The Appellants' alternative argument appears to be that even if one accepts that the Appellants' solicitors are at fault, the Appellants should not suffer thereby. I do not accept that argument either. This was the Appellants' appeal and they had a duty to prosecute it. I was not told that the Appellants' solicitors had specifically advised the Appellant not to attend the hearing, but I would venture to suggest that any solicitor who told his client not to attend in circumstances where he himself did not know whether the hearing was going to take place or not, would potentially be laying himself open to the charge that his conduct was well below the standard which it was reasonable to be expected. It might be argued that these Appellants had been ill-served by their new solicitors who on their own admission had mislaid the Appellants' file. In the absence however of an indication of specific advice from the Appellants' solicitors to the Appellants that they were not to attend the hearing (I asked Counsel if there was any such indication and she informed me that she did not know), the decision not to attend must also have been shared by the Appellants. This was their hearing, there was a duty on them to prosecute their own appeal, they should have attended but they did not. No reasonable explanation has been given for the non-attendance of either the Appellant or the solicitors at the hearing before Designated Judge Manuell and I agree with the comments made by Designated Judge Murray when refusing permission to appeal (see paragraph 8 above).

22. The test of whether to grant an adjournment is one of fairness. Crucially if an adjournment is refused, can the party who has made the application for an adjournment still receive a fair hearing? In this case the adjournment request was not refused, no decision was taken on it because it was made so late in the day that it was still somewhere in the system when the case was called on for hearing. The result of that was that the Appellants and her representatives were not denied a fair hearing because all they had to do was come along to the Tribunal and present their case or, alternatively, renew orally the previous application for an adjournment. The case of Nwaigwe is primarily concerned with applications for adjournment which are made and refused. In this case an application for an adjournment was made but it was not considered. The obvious step would have been for the Appellants' solicitors to have contacted the Tribunal on say the 4th January 2016 (the first day back after the holiday) to enquire whether the application for an adjournment had been safely received and/or considered so that they could advise their clients accordingly on whether to attend or not. The solicitors could have sent a fax to Hatton Cross/Richmond Magistrates' Court making the same enquiry. They could potentially have made the same enquiry the following day, the 5th January although that of course was the day of the hearing. It appears however that none of these steps were taken. The solicitors simply sat back and thought that because they had written a letter to the central administration of the First-tier Tribunal there was nothing further for them to do. As I have indicated that was conduct below the standard which one could reasonably expect but I do not consider that the fault lay such with the solicitors that the Appellant should nevertheless be entitled to have the decision of the Designated Judge set aside on the grounds of procedural error. The Appellants could and should have attended their hearing.

23. The Appellant has never explained why her appeal ought to have succeeded under the Immigration Rules. Nor has there been any proper argument advanced as to any potential error in Designated Judge Manuell's consideration of Article 8 outside the Rules. The point made in the grounds of onward appeal regarding Section 117B is somewhat obscure to say the least. As past Tribunal Authority has demonstrated, that an Appellant speaks English and would not be a burden on taxpayers etc. are not in themselves grounds to grant an application and it is difficult to see how the Appellants' appeal under Article 8 could possibly have succeeded.

24. I appreciate the point that if the Appellant can demonstrate that she has been deprived of the right to a fair hearing then that of itself means that she is entitled to have the decision of the Designated Judge set aside and the matter re-heard in the First-tier. I merely make the point as to the merits to indicate that in fact this is not a case which is strong on the merits but rather the appeal is on a very narrow basis, namely whether solicitors were entitled to assume that an application for an adjournment would be granted. For the reasons which I have given above, they were quite wrong to make that assumption. Their client was not deprived of a fair hearing, she deprived herself of a fair hearing by failing to attend her hearing on 5th January.

25. Thus the fact that Designated Judge Manuell did not consider the solicitors' letter of 30th December does not in my view indicate there was any material error of law. It was perfectly open to the Appellant and her solicitors to attend and renew the application in circumstances where they had not heard from the Tribunal that any application had been granted. The Designated Judge was not aware that any further request had been made, such as a request for information on the progress of the application for an adjournment because no such requests were made. Whilst it would have been administratively better for the letter of 30th December to be married up to the court file, given the holiday period it should have been obvious to the solicitors that they needed to do rather more than simply send a letter to one part of the Tribunal and hope that it would reach another part within a very short space of time. I do not consider there has been any breach of the duty of fairness nor any material error of law in the decision of the Designated Judge to proceed with hearing on 5th January. The conclusions he came to were properly open to him (as I have indicated very little of any substance has been said on the alleged merits of this appeal). I therefore dismiss the Appellant's appeal.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of a material error of law and I dismiss the Appellants' appeal.

Appellants' appeal dismissed.

I make no anonymity order as there is no public policy reason for so doing.

Signed this 23rd day of August 2016

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Deputy Upper Tribunal Judge Woodcraft

TO THE RESPONDENT
FEE AWARD

As the appeal has been dismissed there can be no fee awards.

Signed this 23rd day of August 2016

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Deputy Upper Tribunal Judge Woodcraft