Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23442/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016 and 11th July 2016
On 1st August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

DISTIN JAY GARUILLES
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Litigant in person, unrepresented; formerly represented by Theva Solicitors
For the Respondent: Mr P Duffy, Senior Presenting Officer (3 June 2016)
Miss Z Ahmad, Senior Presenting Officer (11 July 2016)

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Joshi promulgated on 22nd October 2015 against the Secretary of State's decision to refuse leave to remain on 29th May 2014 pursuant to paragraph 276ADE of the Immigration Rules and Article 8 ECHR.
2. The Appellant was granted permission to appeal by First-tier Tribunal Judge Parkes. The grounds upon which permission was granted may be summarised as follows:
"The grounds argue that the Appellant and his representative attended when the case was listed as a float but not reached and did not receive a notice of the renewed hearing which is itself an error. It is also argued that he cannot be reintegrated into the Philippines and that the judge had not applied a facts sensitive approach to the case.
If the Appellant and his representative did not know of the re-listed hearing that would be an error of law, there is little merit in the other submissions but they would have to be re-argued. The First-tier Tribunal file does show that a notice of hearing was sent to the Appellant and his representatives on 7th March 2015 and it is surprising that if the representatives did not hear of a new date they were prepared to do nothing and made no contact with the First-tier Tribunal to chase the matter up. That said, it is an error if they genuinely did not know of the date."
3. The Secretary of State provided a Rule 24 reply that was considered by all parties before the hearing commenced.
Error of Law
4. At the close of submissions on the second hearing I indicated that I would reserve my decision which I shall now give. I find that there was an error of law in the decision, such that it should be set aside. My reasons for so finding are as follows.
5. Pursuant to directions that I gave on 3rd June 2016 indicating that the Tribunal would be assisted if the Appellant filed further evidence in relation to the non-receipt of the notice of hearing sent out on 7th March 2015, the Appellant produced a signed letter by himself wherein he confirmed that he did not receive the notice of hearing and was therefore unaware of the 15th July 2015 adjourned hearing date. Attached to his letter was a separate letter from his previous solicitors (Theva Solicitors) which stated inter alia as follows:
"We now request the learned Tribunal to consider this letter as an official statement from our firm that we have not received the notice of hearing informing the hearing date of 15th July 2015."
6. I am prepared to accept the Appellant's evidence as truthful that he did not receive the notice of hearing informing him of the hearing date of 15th July 2015. My reasons for so finding are that the Appellant did previously attend the Tribunal for his hearing which took place on 4th February 2015 when he was allocated to the "float" list but the Tribunal was unable to deal with his appeal that day due to lack of court time at IAC Hatton Cross. That notice of hearing would also have been sent to the Appellant's representatives Theva Solicitors and on balance I find it credible that the Appellant would not have attended the first hearing to then receive the second notice and simply ignore it, only to complain about it later.
7. In relation to the notice being sent to the legal representatives and their afore-mentioned letter, I am just satisfied that the legal representatives did not receive the notice of hearing informing them of the hearing date of 15 July 2015 and accept that letter on balance.
8. Like Judge Parkes, I formally note my quiet surprise at the solicitors' conduct of the appeal. I do also note that the solicitors did not attend either of the two hearings before me to assist the Appellant and they also did not attend Hatton Cross on 4 February 2015 either. Indeed, it appears that Theva Solicitors have not attended the Tribunal once throughout the course of the Appellant's appeal.
9. The solicitors also failed to provide a witness statement from the supervising solicitor at the firm confirming the non-receipt of the notice of hearing, which one would have expected from them so as to assist the Tribunal as officers of the court. I do record the Tribunal's astonishment at the apathy shown towards the directions of this Tribunal. However, as the solicitors removed themselves from the record on 13 June 2016 the matter will go no further.
10. Given that the Appellant was not informed of the notice of hearing I do just find that there is sufficient error in the Tribunal proceeding to determine the appeal in the Appellant's absence and his representative's absence such that the determination should be set aside in the interests of fairness (pursuant to the decision in Nwaigwe (Adjournment: fairness) [2014] UKUT 418 (IAC). In light of the above findings, I set aside the decision and findings of the First-tier Tribunal in their entirety.
Decision
11. The appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal to be heard by a differently constituted bench.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Saini