Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28635/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

MUHAMMAD ALI SHAH SYED
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P Skinner, Counsel
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

REMITTAL AND REASONS

Introduction

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Nicholls (the judge), promulgated on 15 August 2016, in which he found that he had no jurisdiction to decide the appeal. The appeal to the First-tier Tribunal had been against a refusal of the Appellant's human rights claim.

2. The appeal was listed for oral hearing on 5 August 2016. Before the judge the Respondent was represented but there was no appearance by the Appellant or his representatives. The judge satisfied himself that it was appropriate to proceed in the Appellant's absence and he had before him a copy of the Respondent's bundle.

3. At the hearing the Respondent's representative raised the issue of jurisdiction. He confirmed that the decision by the Respondent was dated 9 July 2015 in which the Appellant's human rights claim had been certified as clearly unfounded under the provisions of section 94(1) of the Nationality, Immigration and Asylum Act 2002. The Respondent's representative thus contended the effect of that provision was that the Appellant did not have an in-country right of appeal. The judge accepted that submission and ruled that the First-tier Tribunal had no jurisdiction to hear the appeal.

4. The Appellant appealed the judge's decision on the basis that a bundle of documents emailed and faxed to the Tribunal a day prior to the hearing had not been considered, and that, the documents therein demonstrated that the appeal was against the Respondent's decision dated 29 July 2015 in which his human rights claim had not been certified. Permission to appeal was granted by First-tier Tribunal Judge Andrew on 12 December 2016.

The hearing before me

5. Having considered the relevant papers Ms Isherwood stated that she was not in a position to prove that the Respondent's decision of 9 July 2015 certifying the human rights claim had been effectively served on the Appellant. She properly acknowledged that the judge plainly did not have the benefit of sight of the Appellant's bundle. In the circumstances the representatives agreed that the only proper means of disposal was to remit this appeal to the First-tier Tribunal for a complete re-hearing.

Decision on Error of Law

6. Through no fault of his own it is apparent that the judge erred in law. It is clear from the Notice of Appeal that the Appellant lodged an appeal against the Respondent's decision of 29 July 2015 and not 9 July 2015. While the latter decision was before the judge in the Respondent's bundle the former for some reason was not, but it was I note attached to the Notice of Appeal. An initial error was thus committed in failing to identify the immigration decision against which the appeal was made.

7. The matter was further complicated by the receipt of a 112 page Appellant bundle, emailed and faxed to the First-tier Tribunal on 4 August 2016 with a written request for the appeal to be determined as a paper appeal. While the Appellant's representatives cite authority for the proposition that parties are encouraged to communicate electronically with the Tribunal, it does not permit as a matter of good practice the filing of late evidence a day before the hearing without explanation. To do so ran the obvious risk that the evidence may not be married to the file in time for the hearing the next day, and no attempt appears to have been made on the day to communicate by telephone alerting the Tribunal to the position. That is unfortunate because had the judge received the bundle he would have been made aware of the Appellant's contention that he had not been served with the decision of 9 July 2015 certifying his human rights claim.

8. There were clearly failings on all sides as a result of which there has been a procedural irregularity in the determination of this appeal. It is also clear that the error was material and I therefore set aside the judge's decision.

Disposal

9. Both parties agreed that this appeal clearly needs to be remitted to the First-tier Tribunal to deal with the question of jurisdiction in the first instance taking into account the evidence submitted by the Appellant and then, if applicable, the substantive appeal. Unless the First-tier Tribunal is notified to the contrary within 10 working days following receipt of this decision, the appeal will be determined on the papers upon the Appellant's request.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision of the First-tier Tribunal.

I remit the case to the First-tier Tribunal.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Bagral