Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25504/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd March 2017
On 13th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

hammad riaz
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Raza, Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan whose date of birth is recorded as 16 July 1989. On 5th December 2014 application was made on his behalf for a residence card as confirmation of a right to reside in the United Kingdom. On 22 June 2015 a decision was made to refuse the application on the basis largely that in the contention of the Secretary of State this was a marriage of convenience so that taking Regulations 2 and 7, of the Immigration (EEA) Regulations 2006, together the Appellant was not a spouse for the purposes of those Regulations and therefore not entitled to the relief being sought.
2. On 10 July 2015, the Appellant lodged his Notice of Appeal. (Had Rule 19(5) of the Tribunal Procedure Rules 2014 been strictly followed he ought, with that Notice of Appeal, to have filed documents not already supplied to the Secretary of State.) The Appellant had indicated that he wanted an oral hearing. The appeal was listed for 28 June 2016 to be heard at Taylor House and notice to that effect was sent to the Appellant and his then solicitors on or about 10 May 2016.
3. On 25 May 2016, the Appellant, by recorded delivery, wrote to the Tribunal to inform it that he was no longer represented by his previous solicitors and that he wanted he appeal to be decided “on the papers” i.e. without a hearing. He went on to say, “I would be grateful if you could update your records with the above instructions and provide me with the date I need to submit my Appellant’s bundle for the paper hearing”. There is nothing on file to suggest that the Tribunal responded in any way to that letter. On 21 June 2016, the file was put before Judge of the First-tier Tribunal Flynn; that is a week before the date upon which the Appellant had otherwise thought that the matter would be listed. At paragraph 8 of the Decision Judge Flynn states:
“Despite directions issued on 10 May 2016, the appellant has not submitted any evidence. I have accordingly proceeded to decide the appeal solely on the basis of the evidence submitted by the respondent, which I am satisfied is sufficient to enable me to decide the appeal justly.”
4. The decision however, though prepared on 21 June 2016, was not signed by the judge until 8 July 2016. In the meantime the Appellant, again by recorded delivery, sent to the Tribunal under cover of a letter dated 29 June 2016, the date after which the matter was previously listed for a hearing, a large bundle of documents running to almost 200 pages. Those documents do not appear to have been put before the judge nor does it appear that the judge was even notified of their existence.
5. Complaint is now made by the Appellant that the adverse decision of the judge in finding that the Respondent had discharged the burden upon leading to a finding that this was a marriage of convenience was a decision which could not stand in the light of the further documents because of procedural unfairness.
6. Permission to appeal was sought and initially refused but was granted on a renewed application on 19 January 2017 by Upper Tribunal Judge McWilliam on the basis that procedural unfairness was arguable because the bundle to which I have referred was received by the Tribunal before the date of decision.
7. In the grounds of appeal reference is made to a guidance note issued by the First-tier Tribunal as long ago as February 2003 recognising the difficulties which can occur when evidence is received after the hearing date but before a decision. Judges were asked to do all they could to ensure cases concluded on the hearing date and only in the most exceptional of cases to agree to the submission of post hearing submissions, or evidence prior to the determination being written.
8. The point in this appeal, however is that the judge has not addressed the evidence at all nor decided whether that evidence, which was submitted, ought to have been admitted into evidence. No criticism can be levelled at the judge. This was entirely the fault of the administration.
9. There is in my view an issue of fairness which arises. The Appellant was no longer represented. His letter to the Tribunal was a reasonable step but he got no response. It is questionable why the Appellant did not provide the Tribunal with his bundle until after the date upon which he might reasonably have otherwise thought that the matter would proceed but at the same time it was provided before the decision was made.
10. The judge ought at least to have had the opportunity to consider the documentation and all the more so in my judgment because a finding that there was a marriage of convenience is a serious matter. In the circumstances, I find, notwithstanding the submissions made on behalf of the Secretary of State, to the effect that there was no error of law because the Appellant ought in any event to have provided the Tribunal at the very least with the documentation in advanced of 28 July 2016, that there was unfairness amounting to an error of law and I set aside the decision on that basis.
11. It is open to me to re-make the decision or remit the matter to the First-tier Tribunal. In my judgment this is a case in which it would be entirely inappropriate for me to re-make the decision. The Secretary of State has not had an opportunity to consider the documentation and there is, regrettably, the risk of a tactical advantage being sought by some Appellants in making application for an oral hearing to be a paper disposal at the last moment so that the Secretary of State does not have the opportunity, as she is entitled, to consider the documentation.
12. Accordingly, I direct that this matter will be remitted to Taylor House for an oral hearing. Any application for this matter to be other than an oral hearing is to be referred to me as the Resident Judge at Taylor House. However the Appellant is likely to find that such an application will be refused unless there is the consent from the Secretary of State to that step. Given the number of documents that have now been supplied it is wholly inappropriate for this matter to proceed on the papers and the Secretary of State is entitled, in my judgment to have the opportunity to cross-examine the Appellant.
Notice of Decision
13. There was a material error of law in the decision of the First-tier Tribunal. The decision is set aside and is remitted to the First-tier Tribunal with no preserved findings of fact.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker