Tribunal decisions

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: IA/22577/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 8 August 2016
On 10 August 2016
Prepared on 9 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

S. R.
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Ali, Counsel, instructed by Farani Javid Taylor Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Pakistan whose application for indefinite leave to remain as the spouse of a British citizen was refused on 1 June 2015, when the Respondent also made a decision to remove him from the UK. The Appellant's appeal against those immigration decisions was dismissed on all grounds, in a decision promulgated on 4 January 2016 by First Tier Tribunal Judge Fisher.
2. The Appellant was granted permission to appeal that decision on 3 June 2016 by First Tier Tribunal Judge Page on the basis it was arguable the Judge's approach to paragraph 322(10) of the Immigration Rules was flawed.
3. Thus the matter comes before me.

Error of Law?
4. The Appellant was invited to interview on 28 April 2015, but did not respond to that invitation within the time allowed, and so the interview was cancelled. The Appellant was then invited to a second interview on 20 May 2015, but again did not respond to that invitation within the time allowed, and so this second interview was also cancelled. There is no dispute about that, or about the fact that the Appellant therefore failed to attend either of two interviews. Moreover there is no dispute over the fact that the Appellant was duly served with both invitations.
5. The Appellant's case on appeal was that he had a reasonable explanation for his behaviour in relation to both interviews. His evidence to the Judge (whether written or oral) does not however appear to have engaged with the first interview, but in relation to the second interview his case was that he was told by his legal representative that he did not need to attend and that the interview had been cancelled.
6. The Judge remarked upon the failure of the Appellant's written evidence to engage with his explanation for his behaviour, and, the failure to provide evidence from the representative who it was said had told him he need not attend the interview and the term in which he did so.
7. Despite the clear conflict of interest between the Appellant and the firm, he was represented at the hearing by an employee of the same firm.
8. Before me is produced a witness statement from the senior partner of the firm, which continues to act for the Appellant, and which has now instructed Mr Ali who was not previously instructed on behalf of the Appellant. The content of Mr Farani's statement dated 19 January 2016 begs a large number of questions, as Mr Ali freely accepts. It appears to have been drafted upon the mistaken impression that passage in the Judge's decision which set out the Appellant's evidence are findings of fact. They are not. Whilst the statement contains the bald admission that the Appellant did not attend the interviews because of the negligent actions of an employee of the firm, no details are given of what that employee admits to having done which was negligent, or rather what Mr Farani believes that employee did which was negligent. No file notes, or records of telephone conversations held with the Appellant, are exhibited to the statement or referred to in it. No details are given of any enquiries Mr Farani has conducted.
9. Mr Ali accepts that he has been placed in a difficult position professionally by the stance apparently taken by Mr Farani, who has never advised the Appellant to seek alternative advice from another firm of solicitors, and who does not suggest that he has reported these matters to his firm's professional indemnity insurers. Mr Ali told me that consistent with his obligations to the Appellant as a member of the Bar, he intended to advise the Appellant as to his position at the conclusion of the hearing before me. In those circumstances I did not myself enquire as to whether the Appellant had been required to fund either the application for permission to appeal, or the hearing before me. Nor was it appropriate for me to enquire as to the specific nature of the advice that would be tendered to the Appellant.
10. Mr Ali accepted that before any rehearing of the appeal he would wish to supplement the evidence currently available. (There was also an issue over whether the bundle of papers prepared for the original hearing of the appeal was served and filed in its complete form, or in an incomplete form. Certainly the bundle on the Tribunal file did not contain all of the documents that Mr Ali had been instructed it should contain. The Respondent's files contained no copy of the bundle at all.)
11. In all the circumstances Mr Diwnycz quite properly accepts that the Respondent, the Tribunal, and the Judge, were through no personal fault of the Appellant deprived of material evidence as to what did, or did not occur, upon the Appellant's receipt of the two invitations to interview. I agree. That is not to prejudge the view the Tribunal will ultimately take of the evidence that is relevant to the explanation that the Appellant offers for his failure to attend either interview, it is simply to recognise that as set out in MM (unfairness; E & R) Sudan [2014] UKUT 105 that the principle of fairness is engaged by what has occurred. On any view the Judge was mistakenly given the impression that the Appellant's representatives were not prepared to offer any evidence as to what exchanges had taken place between their employee and the Appellant. The existence of Mr Farani's statement shows that even if the individual who had dealt with the Appellant was not prepared to do so, the firm as a whole was. Not surprisingly that impression did play some part in the Judge's reasoning, because he commented upon the failure to do so in the course of his decision. That is enough to demonstrate that the mistaken impression played some material part in his reasoning, even if it were not decisive.
12. Accordingly, since both parties were agreed that the decision had to be set aside and remade, the focus of the hearing then turned to the mechanism for doing so. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, as requested by both parties. In the circumstances of the appeal I am satisfied that this is the correct approach. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Fisher.
ii) No interpreter is required for the hearing of the appeal.
iii) The Appellant must serve upon the Respondent and file with the Tribunal by 5pm on 15 October 2016 a consolidated bundle, which should include any further evidence he seeks to rely upon.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 15 October 2016.

Decision
13. The decision promulgated on 4 January 2016 did involve the making of an error of law sufficient to require it to be set aside and the appeal to be reheard. Accordingly the decision upon the appeal is set aside and the appeal is remitted to the First Tier Tribunal with the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Fisher.
ii) No interpreter is required for the hearing of the appeal.
iii) The Appellant must serve upon the Respondent and file with the Tribunal by 5pm on 15 October 2016 a consolidated bundle, which should include any further evidence he seeks to rely upon.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 15 October 2016.
Deputy Judge of the Upper Tribunal JM Holmes
Dated 9 August 2016