Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30085/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 November 2016
On 8 December 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SHEHRIYAR KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR the HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss G Peterson, Counsel, instructed by M&K Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is the Appellant's appeal against a decision of First-tier Tribunal Judge Chana promulgated on 3 October 2016 dismissing the Appellant's appeal under the Immigration Rules ("the Decision"). Permission to appeal the Decision was granted by First-tier Tribunal Judge Zucker in a decision dated 28 October 2016 on the basis that the Decision contains an arguable error of law. The matter comes before me to determine whether there is a material error of law in the Decision and, if so, whether to set it aside and either re-make it or remit the appeal for re-hearing in the First-tier Tribunal.
2. There are five grounds of appeal. The first three deal with the challenge to the Respondent's decision in relation to what I shall call the ETS certificate and also the evidence in relation to the genuineness of the Appellant's relationship with his partner. I do not need to deal with those grounds. In light of the concession made by the Respondent (see below) it is not necessary for me to do so.
3. The fourth and fifth grounds concern the conduct of the hearing before Judge Chana. Ground four relates to the Judge's refusal to hear the evidence of a Mr Shafique Yousaf who had attended to give evidence on the Appellant's behalf.
4. What the Judge says about this is recorded at paragraph [19] of the Decision as follows:
"The next witness to give evidence was Mr Shafique Yousaf who adopted his letter dated 29 July 2016. Asked whether he has any identity document with him he said he has no document to say who he is. I asked him to leave because his identity has not been proved and his evidence would be of no relevance in that event."
5. There was a similar objection, it appears, by the Judge in relation to the evidence of Mr Samaj Ahmad. That is recorded at paragraph [18]. It appears that the Judge did receive some evidence from Mr Ahmad but the point is again made that this witness did not bring his passport to the hearing.
6. In the Rule 24 statement although the Home Office does say that the Presenting Officer's minute does not record any difficulties with the hearing, it does note that the representative (that is to say the Appellant's representative) opposed a witness being asked to leave because they had no identity document. Indeed, this is the point on which permission was granted by First-tier Tribunal Judge Zucker as follows:
"I am concerned by the alleged attitude of the judge to Mr Sumaj Ahmad. Though the Judge had general case management powers in addition to those set out at paragraph 14 of the Tribunal Procedure Rules, it is not clear whether the identity of the witness was put in issue by the Respondent, and even if it were, arguably it was open to the Judge to take the evidence but, for example, direct that sufficient identification be submitted to the Tribunal by a particular date and time. The evidence which the Judge did not hear was arguably capable of affecting the findings in relation to the test and the overall impression of the evidence more generally."
7. There is also a wider point taken about the conduct of the hearing in ground five and in this regard Miss Peterson who appears for the appellant today drew my attention to a letter of complaint addressed to the First-tier Tribunal in Hatton Cross dated 15 September 2016. That raises a complaint against the First-tier Tribunal Judge who heard the appeal. To that complaint letter are appended three witness statements of the Appellant, his partner, and the legal representative Mr Wells.
8. I understand that there has been no response to the complaint and I do not therefore wish to prejudge what might be said in response to that letter. However, Mr Tarlow who appears for the Respondent today very fairly indicated that in light of what was said in those statements (if accepted) and in light of the reasons why permission to appeal was granted, he accepted on behalf of the Respondent that an independent, fair minded observer faced with a hearing at which the matters set out in the statements occurred might consider that there had not been a fair hearing. In those circumstances he conceded that the appeal should be remitted to the First-tier Tribunal in order for it to be reheard.
9. Having read the statements and in light of the approach which the Judge took to the witness evidence, which witness evidence could be material, particularly in relation to the genuineness of the relationship, I agree that it is appropriate that the Decision be set aside and the appeal be remitted.

Notice of Decision
I find that there is an error of law in the Decision of Judge Chana. I set aside that Decision and remit the appeal to the First-tier Tribunal be heard by a Judge other than Judge Chana.

Signed Dated: 7 December 2016
Upper Tribunal Judge Smith