Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24416/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th October 2016
On 8th November 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

wajahat hussain suhail
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Lourdes, Counsel
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a citizen of Pakistan, appeals with permission to the Upper Tribunal, against the decision of a First-tier Tribunal (Judge Samini) promulgated on 2nd March 2016, dismissing his appeal against the Respondent's refusal to grant him leave to remain as a Tier 1 Entrepreneur Migrant under the points-based system. The appeal before the First-tier Tribunal was heard on the papers.
Background
2. On 20th June 2015 the Appellant submitted an IAFT-1 form appealing against the Respondent's refusal to grant him leave to remain. He ticked the box indicating that he wished the appeal to be dealt with as a paper hearing. The requisite fee was paid.
3. On 13th August 2015 a Notice of Hearing was sent to the Appellant, indicating that the appeal was to be heard on the papers and notifying him that any further submissions should be received by the Tribunal by 10th September 2015.
4. In response to that direction, the Appellant wrote on the 28th August 2015 to the Appellate Authority saying he did not wish to have a paper hearing, but wanted to have an oral hearing so he could attend in person and bring further evidence. He requested the Appellate Authority to send him the documentation so that he could pay the upgrade fee for the oral hearing.
5. Nothing was heard by the Appellant in response to that request from the Appellate Authority until 2nd March 2016 when the Appellant received the First-tier Tribunal's unsigned and undated decision, dismissing his appeal. The Appellant appealed the decision to the Upper Tribunal.
Error of Law Hearing
6. Following the grant of permission, I heard brief evidence from the Appellant and submissions from Mr Lourdes who attended to represent him. In the event, I did not need to call upon Ms Isherwood. She was agreeable to the course of action which I proposed and which is set out below.
7. I am satisfied that the FtT's decision discloses an error of law on account of the fact that the Appellant has not had a fair opportunity to present his case. I say this for the following reasons. I am satisfied that the Appellant relied upon his advisors to fill in the IAFT-1 form for him. That form contains contradictory information. Whilst it is acknowledged that the box requesting a paper hearing was ticked, nevertheless the answer to Question I reads as if the Appellant had chosen to have an oral hearing. He says he will attend the hearing.
8. Once the Appellant received notification that the matter was set down as a paper appeal, he wrote soon thereafter to the Appellate Authority in an apparent attempt to right matters and to pay the requisite extra fee for an oral hearing. It would seem that this information was not acted upon and importantly did not reach the judge making the decision, as she makes no mention of it. The decision itself is unacceptable in form; it is neither signed nor dated and one can only wonder if it was intended for publication.
9. In these circumstances, the fairest disposal of this matter is to set aside Judge Samini's decision in its entirety. The decision will need to be re-made afresh. It is right therefore that the matter be remitted to the First-tier Tribunal, for that Tribunal to re-make the decision.
10. The matter should be set down as an oral hearing with the proviso that if the upgrade fee is not paid by the Appellant then the matter will proceed as a paper hearing.

Notice of Decision

The decision of the First-tier Tribunal is set aside. The matter is remitted to the First-tier Tribunal (not Judge Samini) for that Tribunal to re-make the decision.
Directions
(1) The remitted appeal will be set down for an oral hearing, subject to the Appellant paying the requisite fee, within 28 days of this decision.
(2) Time estimate one hour.
(3) Any further documentary evidence which the Appellant intends to rely upon must be served on the Respondent and the Appellate Authority 21 days before the new hearing date.

No anonymity direction is made.

Signed C E Roberts Date 07 November 2016

Deputy Upper Tribunal Judge Roberts