Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26916/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th August 2016
On 14th September 2016

Before

UPPER TRIBUNAL JUDGE FREEMAN
DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR RONALD CORDOVA CALLAO
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr. S Kotas, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS
1. This decision, to which both members of the panel have contributed, determines the appeal by the Secretary of State for the Home Department against a decision by First-tier Tribunal Judge James promulgated on 23rd December 2015, in which she allowed the appeal against the decision of the Secretary of State for the Home Department of 13th July 2015 to refuse Mr. Callao leave to remain on Article 8, family and private life grounds.
2. The appellant before us is the Secretary of State for the Home Department and the respondent to this appeal, is Mr Callao. However for ease of reference, in the course of this determination we shall adopt the parties' status as it was before the First-tier Tribunal. We shall in this determination, refer to Mr Callao as the appellant, and the Secretary of State as the respondent.
3. The matter was called on for hearing at 12:20pm. There was no appearance by or on behalf of the appellant. The Notice of Hearing had been sent to the appellant on 13th July 2016 and there was no explanation for his absence. We note that the appeal before the First-tier Tribunal was determined on the papers, at the request of the appellant. We were informed by Mr Kotas that the appellant has made an EEA application on 30th September 2015. That application was refused on 21st March 2016 and the appellant has appealed. The appeal has not yet been listed for hearing.
4. In the absence of any application for an adjournment or an explanation for the failure of the appellant to attend the hearing, we consider it appropriate to proceed with the hearing, as we are permitted to do, under Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008. We are satisfied that the appellant has been notified of the hearing, and that reasonable steps have been taken to notify the appellant of the hearing. We also consider that it is in the interests of justice to proceed with the hearing.
Background
5. The appellant is a Philippine national. He arrived in the UK on 5th May 2010 with leave to enter as a student valid until 31st July 2011. The appellant then enjoyed the benefit of successive grants of leave to remain until 30th August 2015. However, by a letter dated 3rd February 2015, the appellant was notified that his leave to remain in the UK had been varied such that it expired on 7th April 2015. The letter to the appellant informed him that he was not entitled to appeal that decision, because he still has leave to remain in the UK and that he was not required to leave the UK as a result of that decision. The appellant was informed that his leave to remain would expire on 7th April 2015 and that he should either make plans to depart before his leave expires, or make any further application for leave to remain.
6. On 2nd April 2015, the appellant applied for leave to remain in the UK on the basis of his private life in the UK. The application was refused for the reasons set out in the respondent's decision letter dated 13th July 2015 and it was that decision that gave rise to the appeal before the First-tier Tribunal.
7. First-tier Tribunal Judge James notes at paragraph [10] of her decision that the appellant confirms that he was informed of the curtailment of his leave to remain, by telephone on 20th January 2015 and he then received a letter on 5th February 2015. The Judge states at paragraph [12]:
"12. I thus have no documentary evidence before me of the 60 day letter being issued, if at all, to the Appellant regarding the possibility of obtaining a further CAS. This document is absent from the Respondent's bundle, suggesting no such letter was issued, as indeed was the right referred to in the application form. In the absence of this material letter it appears the Respondent has failed to follow her own policy regarding tier 4 PBS dated 5 October 2009 (and updated thereafter}. Therefore the refusal decision has failed to consider relevant material matters under basic public law principles, and it appears the Respondent has failed to adhere to her own policy in the absence of the relevant letter. Thus the refusal decision is not in accordance with the law and the appeal is allowed on this point alone, taking into account the difficulties facing the Appellant in proving a negative i.e. that he did not receive such a letter."
8. The Judge went on to consider at paragraphs [13] to [17] of her decision, the appellant's Article 8 claim. The Judge concludes at paragraph [17] of her decision that Article 8 is not engaged, but even if it were, the respondent's decision to refuse the application for leave to remain in the UK was reasonable and proportionate in all the circumstances.
9. The respondent appeals on the grounds that the decision of the First-tier Tribunal discloses a material error of law. The Judge proceeds upon a mistake as to fact because she records at paragraph [10] of her decision that the appellant confirms that he was informed of the variation of his leave to remain such that it expired on 7th April 2015, by telephone on 20th January 2015 and that he received a letter on 5th February 2015. However, the Judge concludes at paragraph [12] that the respondent's refusal of the application for leave to remain in the UK is not in accordance with the law because the appellant had not been permitted the usual 60 days grace.
10. Permission to appeal was granted by Upper Tribunal Judge Reeds on 28th June 2016. The matter comes before us to consider whether or not the determination by First-tier Tribunal Judge James involved the making of a material error of law, and if so, to remake the decision.
11. We have no hesitation in finding that the decision of the First-tier Tribunal discloses a material error of law. It was uncontroversial that the appellant had received notification from the respondent that his leave to remain had been varied, first by telephone on 20th January 2015 and followed up in a letter that the appellant received on 5th February 2015. Whether or not the respondent's policy applied, the appellant had in fact received 60 days' grace. On his own account, the appellant received notification in writing on 5th February 2015, that his leave to remain would end on 7th April 2015. The appellant was informed that he was not required to leave the UK as a result of the decision itself, and that he should either make plans to depart before his leave expires, or make any further application for leave to remain. On 2nd April 2015, before his leave to remain expired, the appellant made an application for leave to remain on the basis of his private life in the UK.
12. The respondent considered the application by reference to Appendix FM and paragraph 276ADE(1) of the Immigration Rules. The application was refused for the reasons set out in the respondent's letter of 13th July 2015. On appeal to the First-tier Tribunal, the Judge records at paragraphs [5] and [13] of her decision that the appellant failed to submit a bundle in support of the appeal and there was little or no information or documentary evidence before her. It is in our judgement plain that the appellant was unable to satisfy the requirements of the immigration rules and the Judge was right to find that Article 8 is not engaged and even if it were, any interference is reasonable and proportionate in all the circumstances.
13. It follows that the appeal of the Secretary of State for the Home Department is allowed and the decision of the First-tier Tribunal is set aside.
14. We remake the decision and dismiss the appeal of Ronald Callao against the decision of 13th July 2015 refusing his application for leave to remain in the UK
Notice of Decision
15. The decision of First-tier Tribunal Judge James involved the making of an error on a point of law and is set aside. We substitute a fresh decision and dismiss the appeal under the immigration rules and on Article 8 grounds.
16. No anonymity direction is applied for and none is made.
Signed Date

Deputy Upper Tribunal Judge Mandalia 14th September 2016

FEE AWARD
We have dismissed the appellant's appeal and there can be no fee award.
Signed
Date
Deputy Upper Tribunal Judge Mandalia 14th September 2016