Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/28489/2015
IA/28494/2015
IA/28490/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 22 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RAMACHANDRAN MANIKANDAN
KRISHNA VENI KEERTHI
DAMODAR NAMISH MANIKANDAN
(anonymity direction NOT MADE)
Respondents

Representation:
For the Appellant: Mr S Stanton of the Specialist Appeals Team
For the Respondents: Mr D O'Callaghan of Counsel instructed by the Tamil Welfare Association

DECISION AND REASONS
The Respondents
1. The Respondents to whom I shall refer as "the Applicants" are husband and wife and their younger child. The husband arrived in January 2004 with entry clearance as a work permit holder. The wife had previously arrived in September 2003 with entry clearance as a student. It would appear they have each been continuously present in the United Kingdom since their dates of entry, save for some five weeks in the summer of 2005 when they married, three weeks in November 2008, and three weeks to attend a funeral in February 2009.
2. The immigration history of the husband and the wife is lengthy and complex and is set out in the Secretary of State's letter of 31 July 2015 giving reasons for the decision to refuse the Applicants' application of 4 March 2015 for indefinite leave.
The Appeal and the First-tier Tribunal Proceedings
3. On 13 August 2015 the Applicants lodged notices of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act).
4. By a decision promulgated on 17 August 2016 Judge of the First-tier Tribunal Moran allowed the appeal of each of the Applicants on human rights grounds.
5. The Tribunal file shows that the covering letter sending the decision to the Respondent was dated 17 August which was a Wednesday. Any application for permission to appeal should therefore have been lodged on or before Wednesday 31 August or Thursday 1 September by reason of the bank holiday on 29 August. The application of the Secretary of State (the SSHD) was received on 5 September 2016 and is therefore out of time.
6. On 16 December 2016 Judge of the First-tier Tribunal Frankish granted the SSHD permission to appeal. He did not address the issue of timeliness or make any decision to extend time.
The Upper Tribunal Hearing
7. The hearing was attended by the husband and wife. I was informed their child was outside the hearing room and their older child, an adult, now resided in India. I explained the purpose of and procedure to be adopted at the hearing. The mother confirmed the Applicants' address.
8. Mr O'Callaghan said that although there had been no response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 filed on behalf of the Applicants, there was a preliminary issue whether the SSHD's application for permission to appeal had been made in time and if not, whether time should be extended.
9. Mr Stanton for the SSHD relied on the explanation given in the application itself. In response to the enquiry on the application form IAFT4 requesting reasons why the application was made late, the SSHD had explained:
It is submitted that the Tribunal served the determination to the wrong address POU Feltham as a result of which we only received the decision on 24 August 2016.
Mr Stanton accepted the learning in the decision in RK (Allowed appeals - service on respondent) Albania [2015] UKUT 00331 (IAC) was against SSHD and had no further evidence when the decision of the First-tier Tribunal was received at the Presenting Officers' Unit at Feltham or when it was forwarded to the Specialist Appeals Team at Fleetbank House.
10. Mr O'Callaghan submitted that an express consideration of the timeliness issue was required. The Tribunal had insufficient evidence and explanation from the SSHD to justify an extension of time and noted that the SSHD had not even requested an extension of time on the basis that an extension would be in the interests of justice.
11. He referred me to the grounds for permission to apply for judicial review of 26 April 2013 at pages 56-59 of the Appellant's bundle which had formed the background to what Judge Moran had set out at paragraphs 15-18 of his decision. The SSHD's records obtained in response to a Subject Access Request of 14 August 2015 under the Data Protection Act 1998 disclosed records that it was likely the husband was never aware that his leave had been curtailed; that it had been sent to his previous employers who had informed the SSHD they no longer employed the husband and did not know his then current address. There is further a comment that there were no notes held by the SSHD of what, if any, attempts had been tried to serve the curtailment papers at any other address. There was no challenge that the curtailment notice needed to be served on the subject. At the hearing before Judge Moran the SSHD did not dispute that leaving aside the issue of the curtailment of leave, the husband met all the requirements of the Immigration Rules for the grant of indefinite leave in 2009: see paragraph 34 of his decision.
Findings
12. I find the SSHD has not given adequate reasons to show that I should not follow the reasoning in RK which involved a case where the First-tier Tribunal had promulgated a determination to the Presenting Officers' Unit rather than to the Specialist Appeals Team, as is the case here. The SSHD has not given any other reasons why time should be extended and I do not find that any such reasons present themselves.
13. Consequently, in my capacity as a Judge of the First-tier Tribunal I find the SSHD's application for permission to appeal was lodged out of time and there are no reasons to extend time. Accordingly, there is no appeal before the Upper Tribunal.
Anonymity
14. There was no request for an anonymity order or direction. Having considered the appeal, I find none is warranted.

SUMMARY OF DECISION

The Secretary of State's appeal is invalid and must therefore be dismissed for want of jurisdiction.

The decision of the First-tier Tribunal shall stand with the effect that the appeals of the Applicants are allowed.

No anonymity direction is made.

Signed/Official Crest Date 31. i. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal