Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21778/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons Promulgated
On 17 February 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

SHAISTA IRAM
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Herself (Kingswood Solicitors did not attend)
For the Respondent: Mrs R Pettersen (Presenting Officer)

DECISION AND REASONS
1. This is the appeal of Shaista Iram, a citizen of Pakistan born 11 April 1987, against the decision of the First-tier Tribunal of 4 February 2016, itself brought against the decision of 27 May 2015 to refuse her application for further leave to remain.
2. The Appellant was granted leave to enter as a spouse on 18 December 2011 until 29 December 2013. She then overstayed her leave. The application leading to these proceedings was made on 12 March 2015, for leave as the spouse of a British citizen, and was refused, under the five-year route because she had significantly overstayed her leave and the financial requirements were not met given the evidence of income only of £12,500. It was not accepted that the requirements of the ten-year route under Appendix FM were met, given that it was not accepted that there were no insurmountable obstacles to the couple’s relocation abroad: the Sponsor's connections here might be significant but they would face no more than a degree of hardship following relocation to Pakistan. It was not accepted that the Appellant would face very significant obstacles to integration in the country in which she was born and raised.
3. The First-tier Tribunal noted that it had located no grounds of appeal on its perusal of the file, and having raised the matter at the hearing, was told by the Appellant's advocate that it was his experience that where grounds of appeal were identified as missing from the file, the Tribunal’s administrative staff would contact the Appellant’s representative. This had not happened on this occasion, implying that this was an administrative oversight for which the Tribunal was responsible. Disconcertingly he then stated that he would need time to “draft” grounds of appeal notwithstanding that he gave the impression of having his office file with him, suggesting that there were none in existence notwithstanding his prior suggestion to the contrary.
4. The First-tier Tribunal accordingly found that no grounds of appeal had accompanied the notice of appeal form, which was additionally deficient for its failure to request an interpreter or to provide the notice of decision against which the appeal was brought. At no point had the Appellant's advocate sought to identify what the grounds of appeal might actually have been and none was discernible from the papers originally or subsequently filed. Accordingly the Judge ruled that there was no appeal before the First-tier Tribunal.
5. Grounds of appeal argued that the authorities such as HH Serbia applying Jeyanthan demonstrated that the validity of a notice of appeal could not be determined by mechanical application of the formalities of the Rules alone: rather the question was whether there had been substantial compliance, and if the Secretary of State had not taken the point, they should be treated as having waived any right to object to the procedural irregularity. The First-tier Tribunal had not treated the appeal as invalid via the service of a notice of rejection. At the very least an adjournment should have been provided so that the parties could consider their positions on the issue.
6. Judge Froom granted permission to appeal for the First-tier Tribunal on 25 July 2016.
7. A Rule 24 response set out that the appeal was opposed, because the appeal was under the relevant (ie new) provisions of the Nationality Immigration and Asylum Act 2002 given that the decision amounted to the refusal of a human rights claim post-dating April 2015. Absent a section 120 statement or grounds of appeal there was no matter before the First-tier Tribunal for its consideration. The case law relied upon pre-dated the new statutory regime.
8. The Appellant was not represented before me, but her husband was available to speak on her behalf Mrs Aboni pragmatically recognised that the approach of the First-tier Tribunal was not sustainable, particularly where it seemed that the author of the Appellant’s misfortune was not himself but his legal representative.
Findings and reasons
9. As the disposition of the appeal was agreed before me, I can state my reasons briefly. As Lord Woolf MR stated in Jeyeanthan [1999] EWCA Civ 3010, “Any consideration of the significance of not complying with a procedural requirement commences with the language of the instrument containing the requirement.” The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 set out that:
“Failure to comply with rules etc
6. - (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
(a) waiving the requirement;
(b) requiring the failure to be remedied;”
10. Lord Woolf went on to indicate that the questions which are likely to arise in a non-compliance case are as follows:
“(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)”.
11. Accordingly it is clear that formal failings are not themselves sufficient to lead to an appeal being void. The fundamental question posed by the authorities is whether there is substantial compliance with procedural steps and whether the statutory or Rule-based scheme specifies consequences for procedural non-compliance.
12. Here there were indeed three procedural failings, having regard to the requirements for a notice of appeal set out in rule 19(4) of the 2014 Rules, which cast a shadow over the appeal. However, it is clear that by the time of the hearing the Appellant had provided a bundle of evidence which clearly demonstrated the line of argument upon which she rested her case. Her witness statement states that due to misguided legal advice she made an application on the wrong form, which had led to her becoming an overstayer, and that had strong connections in this country, her relatives here providing her with financial and emotional support. So the contours of her case were readily available to the representatives and the First-tier Tribunal below. So arguably there had been substantial compliance with the requirement of the Rule by the date of hearing.
13. Furthermore, Rule 6(2) specifies consequences in the event of non-compliance, and those consequences propose a graded and proportionate response to any default bearing in mind the issues at stake in the appeal.
14. Rule 6(2) is in no way inconsistent with the approach authorised by older Tribunal decisions such as HH Serbia [2006] UKAIT 00063 and RS and FD Jamaica [2006] UKAIT 00064, which indicate that the appropriate reaction to an appeal where the grounds have not been specified is to determine the matter on its merits, conceivably without a hearing if it is truly considered that some sanction is appropriate for the Appellant’s failure to particularise their case. Even so, unless the Home Office has expressly taken the point early in the appeal proceedings, it will normally be inappropriate to raise the matter of the Tribunal’s own motion: HH at [16]. Even if the point is taken, the First-tier Tribunal must apply its overriding objective of securing decision making which promotes the interests of justice and which is proportionate to the issues at stake. Here there was evidence available which put the Appellant's case firmly in the context of her private and family life. It was not considered.
15. One has some sympathy for the predicament in which the First-tier Tribunal found itself, given the vacillating response of the Appellant’s representative before it, who in the space of moments changed his stance from asserting that grounds of appeal had been provided and that the administrative support section of the Tribunal must have lost them, to requesting an opportunity to draft grounds on the spot. This unexplained change of stance undermined the credibility of any information that he gave the judge below and invited some degree of procedural sanction. Nevertheless, the Appellant bore no culpability herself for the ineptitude of her advisors in progressing her case.
16. In the circumstances I accept that the First-tier Tribunal erred in law by failing to determine the appeal on its merits. The Appellant having lost a tier of appeal due to a procedural failure of no fault of her own, remittal for hearing afresh is appropriate.
17. It is for the First-tier Tribunal to make its own directions as it sees fit: it would be very wise indeed for the Appellant to ensure that grounds of appeal are filed and served on the First-tier Tribunal and Home Office in good time for the appeal’s next hearing.

Judge Symes
Deputy Judge of the Upper Tribunal

Signed: Date: 21 February 2017