Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26830/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st December 2017
On 11th January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

Mr william brobbey
(ANONYMITY DIRECTION not MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms S Sharma, Counsel instructed by Justice and Law Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Ghana whose date of birth is recorded as 25 December 1977. On 2 April 2015, he made application for leave to remain in the United Kingdom on the basis of family and private life. On 15 July 2015, a decision was made to refuse the application and the Appellant appealed. This appeal has an unfortunate history.
2. The appeal was heard in the first instance on 14 October 2015 by Judge of the First-tier Tribunal Manchester. He dismissed the appeal but after a successful application for permission to appeal the decision of Judge Manchester was set aside on 17 June 2016, in the Upper Tribunal, by Deputy Upper Tribunal Judge Pickup; his decision being dated 28 June 2016. The appeal had been a "paper appeal". At paragraph 18 of Judge Pickup's decision one of the consequential directions was that the appeal was to remain a "paper case". Eventually, on 2 March 2017, the matter came before Judge of the First-tier Tribunal Dearden. He dealt with the matter consistent with the consequential directions, "on the papers". He made certain observations in his decision in relation to the lack of evidence in respect of certain matters. It is not necessary, given what is about to follow, for me to deal with any of those aspects of the appeal save to note that Judge Dearden dismissed the appeal on human rights grounds, being the basis upon which the appeal was brought.
3. Not content with that decision, by Notice dated 30 March 2017 the Appellant sought permission to appeal and it is important to note that the Grounds of Appeal were drafted by, and signed by, the Appellant's solicitors. They make the point that between the decision of Judge Pickup and the decision of Judge Dearden they instructed by the Appellant, wrote to the Tribunal requesting that the appeal not be dealt with on the papers but that the Appellant be allowed an oral hearing. The documentation on file is not satisfactory in the sense that there is no particular correspondence that definitively supports what the Appellant's solicitors say, though there is a document which is headed 'facts job log' dated 30th March 2017. That came to the Tribunal after the decision of Judge Dearden but the essential point taken by the Appellant's solicitors is that they requested an oral hearing. It is unfortunate that a reality of this Tribunal, being a large Tribunal with many files that from time to time documents sent to the Tribunal get misfiled. If the Appellant's solicitors, they being officers of the court, say that they sent correspondence to the Tribunal, then on balance I am prepared to accept what they say. Of course, if they were misleading the Tribunal they would know that very serious consequences would follow. Indeed, it would be possible that the appropriate body might consider very serious sanctions indeed let alone any criminal sanctions that might follow and it is for those reasons that I am prepared to accept what the solicitors had to say. It follows that there has been procedural unfairness.
4. Mr Melvin was concerned to know whether or not the appropriate fee had in fact been paid by the Appellant's solicitors in support of the contention that a request for an oral hearing had been made but that is not my experience of the procedure. A letter from the Appellant's solicitors, or indeed an Appellant, requesting an oral hearing would result in the Tribunal putting the matter before a judge who generally speaking would then have a letter or notice sent from the Tribunal inviting the Appellant or the Appellant's solicitors to pay the appropriate fee. In other words, the fee would not be paid on the application. It would be paid once the request had been considered. There is no evidence of any consideration having been given to an oral hearing. I am satisfied that there has been procedural unfairness.
5. Mr Melvin also makes the point that this matter has been going on far too long. I agree. It is most unfortunate that this has occurred and it would have been far better if the First-tier Tribunal Judge dealing with the application had put this matter before his/her Resident Judge with a view to having had the matter set aside in the First-tier Tribunal. That was not done. However, I find for all the reasons set out above that there has been a material error of law because of the procedural unfairness. I set aside the decision and remit it to the First-tier Tribunal to be heard de novo. The consequential directions are as follows:
(1) If there is to be an oral hearing of this appeal then the Appellant's solicitors shall write again to the First-tier Tribunal at Taylor House to where this appeal shall be remitted and that upon payment of the appropriate fee the matter shall convert to an appeal to be heard with live evidence.
(2) That letter to the Tribunal requesting that the matter be dealt with, with live evidence, shall be sent to the Tribunal within 14 days of the date upon which this decision is promulgated.
(3) No interpreter is required.
(4) For the avoidance of doubt, the matter having been set aside, there are no preserved findings

Notice of Decision

The appeal to the Upper Tribunal is allowed. The decision of the first-tier Tribunal is set aside. The matter is remitted to the First-tier Tribunal.

Signed Date: 10 January 2018

Deputy Upper Tribunal Judge Zucker