Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21386/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 July 2016
On 01 August 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

MR DUPLAY BISWAS

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation
For the appellant: No appearance by or on behalf of the appellant
For the respondent: Ms Z Ahmed, Home Office Presenting Officer

DECISION AND REASONS

1.The appellant has permission to challenge the decision of First-tier Tribunal Judge James dated 9 November 2015 dismissing his appeal against a decision made by the respondent on 19 May 2015 to refuse leave to remain in the UK. The principal ground of appeal is that the judge erred in refusing to adjourn. It is also argued that the judge was wrong to reject the Article 8 grounds.

2. At the hearing before me there was no appearance by or on behalf of the appellant. There was, however, a fax from his representatives, SEB Solicitors, stating that he had been taken to the emergency service of Newham Hospital today at 830 am, was currently undergoing tests for urine and kidney infection and so was unable to attend his hearing. The letter however, was silent about the Solicitors' reasons for being unable to attend beyond saying that should the Tribunal decide not to allow an adjournment "we are not instructed to represent the appellant on the hearing". I am bound to say I find this hard to follow. Either the Solicitors had decided before this morning they were not going to represent or this was a last-minute decision not to attend. If it was the former, then the Tribunal should have been informed earlier. If it was the latter, then there should have been an explanation for why they were not attending. This was listed for an error of law hearing. It was not essential for the appellant to attend anyway if he was represented. In the circumstances I decided it was in the interests of justice to refuse this application to adjourn. I decided to proceed to determine the case in the absence of one of the parties. I heard brief submissions from Miss Ahmed.

3. The grounds of appeal contend that the First-tier Tribunal judge should have adjourned the hearing because after refusal of the first adjournment request the appellant had faxed a second. The reason the first request had been refused was because the medical letter from a homeopathic medical centre saying he was unfit did not specify inability to attend a hearing. The further fax contained a further letter from the same medical practitioner stating that the appellant was unfit to travel.

4. This ground is devoid of merit. The hearing before Judge James was fixed for 16 October at 1000 hours. The further adjournment request was not faxed until 1252 the same day. Not only was there no error on the part of the judge in failing to address the request but there was no error of process because the Solicitors did not make the request in time for the hearing.

5. Even had I considered there was procedural unfairness in the failure to adjourn, I would not have found an error of law. As emphasised by the Upper Tribunal in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), for there to be error of law it must be material. In the appellant's case his appeal was based solely on his private and family life and the judge gave cogent reasons for concluding (i) he could not succeed under the Immigration Rules on the basis of his private or family life; and (ii) the state of the evidence regarding his situation in the UK (e.g. the fact that at all time his immigration status as a student has been precarious; that he has no dependents; that he provided no evidence he was studying; that he failed to substantiate that he had adequate finances and a partner; and that he had not shown there were significant obstacles to his return to Bangladesh) failed to demonstrate any exceptional or compelling circumstances such as to warrant a finding that his Article 8 rights had been violated. His Article 8 claim was inherently weak.

6. For the above reasons, the grounds of appeal are rejected. The decision of the First-tier Tribunal must stand

Signed

Date: 29 July 2016

Dr H H Storey
Judge of the Upper Tribunal