IA/25951/2015

• Status of case: Unreported
• Hearing date: 29 Jul 2016
• Promulgation date: 2 Aug 2016
• Publication date: 30 Nov 2017
• Last updated on: 30 Nov 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25951/2015


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 29 July 2016
On 02 August 2016




Before

UPPER TRIBUNAL JUDGE STOREY



Between

MR C M PATEL

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation
For the appellant: No appearance by or on behalf of the appellant
For the respondent: Ms Z Ahmed, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant has permission to challenge the decision of First-tier Tribunal Judge Davies dated 26 January 2016 dismissing his appeal against a decision made by the respondent on 1 July 2015 to refuse leave to remain in the UK as a Tier 4 student migrant. The sole ground of appeal is that the judge erred in dealing with the case on the papers when the appellant had submitted a request on 21 September 2015 for an oral hearing.

2. At the hearing before me there was no appearance by or on behalf of the appellant and no explanation for such absence. In the circumstances I decided to proceed to determine the case in the absence of one of the parties. I heard brief submissions from Miss Ahmed.

3. The ground of appeal is devoid of merit. It is clear that when lodging his appeal the appellant had opted for a paper hearing (see page 3 of appeal form). Whilst he did send a fax on 21 September 2015 requesting an oral hearing, he had no right to an oral hearing unless he had paid the requisite fee. At best his fax of 21 September was a request to pay such a fee Despite receiving no response to his request, the appellant made no further inquiry over the next months and as such the legal position as at the date fixed for hearing was that it was for disposal on the papers. It does not appear that Judge James's attention was drawn to the fax in question but there was no error of law in her failure to refer to it because the appellant did not have an entitlement to an oral hearing.

4. Even had I considered there was procedural unfairness in the decision to dispose of the case on the papers, I would not have found an error of law. As emphasised by the Upper Tribunal in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), for there to be error of law it must be material. In the appellant's case it was manifest that he could not succeed under the Immigration Rules as he had no valid CAS. As regards Article 8 the appellant's ground raising the ECHR were wholly unparticularised, despite being afforded the opportunity to submit further evidence he had not done so, the judge addressed his Article 8 claim in any event and gave cogent reasons for concluding that it was weak, he having only arrived in the UK in 2009 and not produced any evidence of family life or significant private life.

5. For the above reasons, the grounds of appeal are rejected. The decision of the First-tier Tribunal must stand



Signed

Date: 29 July 2016


Dr H H Storey
Judge of the Upper Tribunal