Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/35108/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th December 2017
On 19th January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr Hussain Fida
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Maqsood instructed by Lamptons Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision of the Secretary of State of 8th December 2015 refusing his application for a residence card as confirmation of a right to reside in the UK as the unmarried partner of an EEA national. First-tier Tribunal Judge Khawar dismissed the Appellant's appeal in a decision promulgated on 22nd February 2017.
2. The Appellant appealed against that decision putting forward two grounds. The first ground is that the First-tier Tribunal erred in determining the appeal as he had no jurisdiction to do so following the decision of the Upper Tribunal in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC). It was agreed by Mr Maqsood and Mr Richards at the hearing that this Ground of Appeal fell away in light of the decision of the Court of Appeal in Khan v Secretary of State [2017] EWCA Civ 1755.
3. The second Ground of Appeal remained live, it is contended in that ground that there was a procedural error on the part of the Tribunal. The hearing was listed for 13th February 2017. It is contended that the Appellant's solicitors faxed a letter to the Tribunal on 10th February 2017 indicating that the Appellant had instructed the solicitors to withdraw his appeal listed for 13th February 2017. In those circumstances it was submitted that there was a procedural error in proceeding with the appeal despite receipt of this letter.
Error of Law
4. Mr Maqsood outlined the chronology to this appeal. The Secretary of State's reasons for refusal letter was dated 8th December 2015 and the appeal was lodged on 16th December 2015. He highlighted that the Upper Tribunal decision in the case of Sala was promulgated in September 2016 and that case determined that there was no right of appeal available to the extent of family members of EEA nationals. He pointed out that on 25th November 2016 the 2016 amendments to the EEA Regulations came into effect. In his submission it was in response to that change of the law that the Appellant decided that it was appropriate to withdraw the outstanding appeal on the basis of the decision in Sala. Notice of an application to withdraw was submitted on 10th February 2017. Mr Maqsood accepted that this reason is not put forward in the letter purporting to withdraw the appeal. However he said that his instructions were that the only reason for withdrawing the appeal was because of the decision in Sala.
5. Mr Maqsood pointed out that it is now apparent that the First-tier Tribunal Judge did not see the fax of 10th February 2017 because at paragraphs 7 and 8 the judge considered whether it was appropriate to determine the appeal in the absence of the Appellant. The judge noted that no communication had been received from the representatives and there was no attendance by the Appellant and no explanation for his absence. He further pointed out that at paragraph 19 the judge took into account the absence of the Appellant and the Sponsor at the hearing before concluding that any evidence submitted had not been subjected to testing and therefore carried little evidential weight. The judge's decision was promulgated on 22nd February 2017.
6. Mr Maqsood highlighted that on 6th March 2017 an application was made to the First-tier Tribunal for permission to appeal on the grounds of the decision in Sala and on the basis of the fact that the application to withdraw was not taken into account. On 7th September 2017 permission to appeal was granted on the basis of the decision in Sala as well as the purported withdrawal. He highlighted that the decision in Khan v Secretary of State was issued on 9th November 2017 and that decision the Court of Appeal confirmed that extended family members do in fact have a right of appeal.
7. Mr Maqsood formulated the issue to be determined as to whether there was a good reason for the Appellant's absence from the hearing in the First-tier Tribunal. He submitted that there was a good reason as the Appellant and the Sponsor chose not to attend as they were advised and believed that there was no point in attending based on the jurisdictional issue determined by the Upper Tribunal in the decision in Sala. In his submission, given subsequent events, there was a good reason not to attend but one that would now require the decision to be set aside. He also noted that under Rule 17(3) of the First-tier Tribunal Procedure Rules the Tribunal must notify each party that a withdrawal has taken effect and in the absence of that notice there was no effective withdrawal in this case.
8. Mr Richards submitted that there was no procedural error in this case as there was no reason given in the withdrawal request and, if they had not received a withdrawal notice, the Appellant and Sponsor should have attended the hearing.
9. In my view there is a straightforward interpretation of the procedural matters in this case.
10. I have seen a copy of the fax dated 10th February 2017. It is not in dispute that this was received by the Tribunal. That fax contains a letter from the Appellant's solicitors indicating that the Appellant had instructed that the appeal be withdrawn and asking for confirmation to this effect. It is clear from the decision made by the First-tier Tribunal Judge that that withdrawal request was not before him. It is not in dispute that that purported withdrawal does not contain any reasons for the request to withdraw the appeal as required by paragraph 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
11. However in my view, had the fax been before him on 13th February 2017, the judge would have had to consider whether the notice of withdrawal had been given in compliance with Rule 17 and would have had to consider whether withdrawal was appropriate (TPN (FtT appeals -withdrawal) Vietnam [2017] UKUT 00295 (IAC)). If the judge had considered that the absence of a reason was a barrier to proper consideration of the request he would have had to consider whether it was appropriate to adjourn the hearing or to go ahead and hear the appeal in the absence of the Appellant under Rule 28. It may well have been that the judge would have considered that, in the context of a withdrawal application, it may have been appropriate to give the Appellant an opportunity to either provide reasons or to attend the hearing.
12. In these circumstances I consider that the fact the judge did not have the withdrawal request before him due to an administrative error and accordingly was unable to consider the request in accordance with the Procedure Rules amounts to a procedural error in this case. In these circumstances in my view the decision of the First-tier Tribunal should be set aside.
13. In considering remaking the decision I take into account the decision of the Court of Appeal in Khan. The Appellant has not had his case fully considered by the First-tier Tribunal. In my view it is in the interests of justice in this particular case for the Appellant to have his appeal heard afresh. In these circumstances I consider it appropriate for the appeal to be remitted to the First-tier Tribunal.
Notice of Decision

The decision of the First-tier Tribunal contains a material error of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted to the First-tier Tribunal.

Signed Date: 14th January 2018

Deputy Upper Tribunal Judge Grimes