Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/37123/2014
IA/37125/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 6 January 2017
On 7 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

A O FAYOYIN
&
O OLAEKAN
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellants: No appearance
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION
1. This determination is to be read along with the decision on error of law issued on 9 November 2016, paragraph 12 of which stated that the case would be listed "for consideration of any further evidence which may be tendered, for final submissions and for substantive decision on 6 January 2017." That decision was issued along with notice of further hearing.
2. A letter faxed to the Upper Tribunal on 29 December 2016 from the appellant's solicitors states:
We refer to ? the directions issued by the Upper Tribunal dated 9 November 2016 ?
We note that the appellants [have] 8 weeks to provide the required evidence of a PhD place ? the appellants are at the last stage of receiving this confirmation. Unfortunately, due to the festive holidays, there have been delays by the university in providing the information required.
We therefore request that a further 8 weeks be allowed for the appellants to lodged the evidence.
?
3. That letter was placed on the file. The case remained listed for 6 January at 10 am. There was no appearance on behalf of the appellants at that time, and the UT had received no further communication from them.
4. The UT is under no obligation to contact appellants or representatives who do not appear at times fixed for hearings. However, a tribunal clerk telephoned the appellant's solicitors. I was advised that their response was that they had not been aware of the hearing, and that they had requested further time. The clerk then told solicitors by telephone that the hearing would proceed at 11 am.
5. The hearing proceeded at around 11.10 am. Mr Matthews advised that a copy of the letter of 29 December 2016 had not been received by the respondent. The UT provided a copy. Mr Matthews further advised that there had been no communication from the appellants to the respondent since the last hearing.
6. Mr Matthews submitted thus. The date had been provisionally notified orally at the previous hearing, then confirmed in writing. The appellants had no reason to believe that the hearing had been or would be adjourned. Their letter of 29 December does not ask for adjournment; it asks for further time to provide evidence. The appellant has now had several years to arrange to pursue his PhD studies. It was very clear on the last occasion that the outcome depended on evidence of that possibility. There was no direct evidence before the UT that a place might be available. If there were a real possibility, presumably the university concerned could at least have indicated a date by which a decision would be forthcoming. The first appellant might have had some complaint of delay by the Home Office, but that was historic. There was nothing in that delay which gave him or his family a general right to remain in the UK for study or other private life reasons. If he were able in future to secure a PhD place at a UK university, it was open to him to apply from Nigeria for entry clearance. It was doubtful whether his academic studies fell within the scope of Article 8 at all, but in any event there was nothing to show that refusal of leave was a disproportionate outcome.
7. I enquired what the position would be if the appellant did obtain evidence of a PhD place within the next few weeks, and then sought to have a student application considered without leaving the UK. Mr Matthews indicated that such an application would be a matter for consideration by the Secretary of State on its merits according to the circumstances at the time, and that no indication could be given of the outcome. If such an application were to be refused, there would be no statutory right of appeal.
8. In course of the submissions by Mr Matthews I was provided with a copy of a faxed letter from the appellants' solicitors, received by the UT at 10:59, which says that in the absence of response to their earlier request they were not aware that appearance was required, and requests an adjournment.
9. I indicated that the hearing would proceed in absence of the appellants and their representative under rule 38, and that the appeals would be dismissed.
10. The appellants through their solicitors were not entitled to assume either that the hearing of 6 January would be adjourned or that further time would be granted to provide evidence. Their first letter does not make it clear that adjournment is sought, and in any event preparations ought to have been made on the contrary assumption.
11. If arrangements are in progress with a university, it should have been easy to produce evidence that at least a possibility of a PhD place exists, and a date by which the matter might be resolved.
12. Even if the appellant does in future secure a PhD place, there is nothing disproportionate in the requirement that he makes the relevant application from Nigeria.
13. There has not been shown to be any feature of the immigration history or of the private life of the appellants such that it is disproportionate now to expect them to comply with the immigration rules, or to return together to Nigeria in absence of entitlement to remain here under the rules.
14. It would be open to the appellants to ask the respondent to waive the requirement to make a student application from abroad, but that is a matter for the respondent, based on the circumstances if and when it arises.
15. The decision of the First-tier Tribunal has been set aside. The decision substituted is that the appeals, as originally brought to the First-tier Tribunal, are dismissed.
16. No anonymity direction has been requested or made.

6 January 2017
Upper Tribunal Judge Macleman