Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39537/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 11 October 2016

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

MR AMIT ALOYSH MACWAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The Appellant did not attend and was not represented
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DECISION/ NOTICE THAT APPEAL ABANDONED AND REASONS
1. This matter has a somewhat long and convoluted history. For the reasons submitted by Ms Ahmad before us and which we set out below, there was no valid appeal before Judge Pullig and nor is there any appeal before us, such appeal as was made having to be treated as abandoned by reason of the Appellant's departure from the UK on 26 May 2016. However, in light of the rather confused position and since the Appellant was not present (for good reason) and the solicitors who lodged the appeal or application for permission to appeal (Farani Javid Taylor) did not attend, we agreed with Ms Ahmad that we would provide a reasoned decision in writing as to the position rather than simply indicate that the appeal is treated as abandoned. We satisfied ourselves at the start of the hearing that notice of it was sent to Farani Javid Taylor. There was no application before us to adjourn the hearing nor any explanation provided for their failure to attend. We therefore decided that it was in the interests of justice that we proceed, particularly in light of the view we have taken about the validity and continuing existence of an appeal.
2. The appeal is originally against a decision made by the Respondent on 22 September 2014 curtailing the Appellant's leave as a Tier 4 student on the basis that he had exercised deception. The Notice of Immigration Decision is a notice of removal (an IS151A Part 2) made under section 10 Immigration and Asylum Act 1999 on the basis that the Appellant has exercised deception. This gave rise to an out of country right of appeal. The accompanying IS151A provided a statement of reasons for the decision to remove as follows:-
"You are specifically considered a person who has sought leave to remain in the United Kingdom by deception. For the purposes of your application dated 20 July 2012, you submitted a certificate from Educational Testing Service ("ETS") to the Home Office. ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 17 July 2012 at Seven Oaks College have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained."
3. We make two further observations about the background to the appeal at this point which are relevant to what follows. The first is that, the Respondent's decision having been made prior to 6 April 2015 and not being one to which the interim transitional provisions applied, the right of appeal arose under the appeal provisions prior to the coming into force of the Immigration Act 2014. As such, the decision generating the right of appeal was not a refusal of a human rights claim but a section 10 notice of removal which is an immigration decision under section 82(2)(g) Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") as then in force. As a result of The Immigration Act 2014 (Commencement No 3 Transitional and Saving Provisions) Order 2014 (SI No 2771 of 2014) ("the 2014 Order") and the Immigration Act 2014 (Commencement No 4 Transitional and Saving Provisions and Amendment) Order 2015 (SI No 371 of 2015) ("the 2015 Order"), the "saved provisions" which include Part V of the 2002 Act as in force prior to the Immigration Act 2014 apply. Paragraph 8 of the 2015 Order amending paragraph 9 of the 2014 Order at 9(1)(d) provides that the saved provisions have effect in relation to a decision made before 6 April 2015 in relation to which an appeal was pending at that date. The appeal in this case was originally lodged on 4 October 2014.
4. The second matter relates to an application made by the Appellant on 30 September 2014 (that is after the Respondent's decision was made and served) as a dependent on his wife's Tier 4 application. His wife apparently had leave to remain as a student until February 2016. Farani Javid Taylor rely on that application in their letter dated 8 December 2014 as having formed the basis of a human rights claim. Their letter dated 8 December 2014 states as follows:-
"It is our instructions that the Appellant submitted a Tier 4 dependent application on the basis of his partner, which did encompass a human rights element to the extent that they enjoyed a private and family life together as husband and wife."
The difficulty with that assertion is that there is no evidence of that application or the covering letter to it before us and nor was it produced or relied upon before Judge Pullig. As such, there is no evidence that a claim was in fact made rather than being implied (on the Appellant's case) by reason of the nature of the application.
5. With that introduction, we move on to consider the decision of Judge Pullig which is the foundation of the appeal before us. That decision (hereafter "the Decision") was promulgated on 17 December 2015. The Appellant was not present or represented at that appeal. Farani Javid Taylor asked for the appeal to be determined on the papers.
6. The Judge properly reminded himself at [2] of the Decision that the appeal proceeded under the provisions prior to the coming into force of the Immigration Act 2014. The Judge set out at [3] to [11] the background of the appeal to that date. He rightly noted that it was relevant to know whether the Appellant had made a human rights application (perhaps more accurately a "claim") to the Respondent. There is nothing to suggest that he received a positive answer to the directions which he had previously given asking the Appellant or his solicitors to confirm this. The Judge appears to have thought that he had no copy of the letter giving the reasons for the Respondent's decision. That is incorrect as the IS151A to which we refer at [2] above was with the grounds. As we have already noted, the IS151A provided the reasons for the Respondent's decision. That may not have been with the original faxed appeal grounds (submitted by the Appellant in person) but it was certainly with the bundle submitted by the Respondent to the Tribunal on 5 November 2015. The Judge referred to the Appellant having raised Article 8 ECHR in his grounds but, of course, following the Court of Appeal's judgment in Nirula v First-tier Tribunal (Asylum and Immigration Chamber) and another and Secretary of State for the Home Department [2012] EWCA Civ 1436, that could not constitute a claim for the purposes of section 92(4)(a) of the 2002 Act.
7. It is at this point that the Judge fell into fundamental error. Having sought a copy of the letter giving reasons for the Respondent's decision from the Respondent's representative who was present and not having received that, the Judge went on to say as follows (at [5]):-
"If that is the case it is difficult to know the basis upon which the decision to remove the appellant was made. If that decision is lawful then it gives rise to an in country right of appeal but if it was not of course there is no valid appeal before me."
[our emphasis]
That observation is clearly in error. The Judge appears to have understood that the Respondent's decision under appeal was a section 10 decision ([1] of the Decision) and, it appears, received nothing from the Appellant to confirm that a human rights claim had been made to the Respondent so that the only reference was to Article 8 in the grounds of appeal which was insufficient to amount to a human rights claim under section 92(4)(a) of the 2002 Act. The Judge should therefore at that point have concluded that he had no valid appeal before him as the right of appeal was one exercisable only from outside the UK. Instead, the Judge went on to consider validity on an alternative basis and dismissed the appeal "for want of jurisdiction" for procedural reasons at [24] to [28] of the Decision. For those reasons, if we had to determine this appeal substantively, we would have set aside the Decision on the basis that it contains an error of law in relation to the reasons given for the invalidity of the appeal.
8. The Judge having concluded that there was no jurisdiction for the reasons he gave, then went on at [29] to say as follows:-
"However it may well be that the respondent may make a fresh decision or the appellant may appeal again out of time. If the latter then I would invite the Duty Judge who may receive a late notice of appeal to extend time given the importance of the issue raised by the appellant, namely the allegation of deception."
9. The Judge's remark at [29] of the Decision appears to have prompted the further action taken by the Appellant's representatives which led to the hearing before us. On 7 January 2016, Farani Javid Taylor lodged an appeal to the First-tier Tribunal purporting to be an appeal against the Respondent's decision dated 22 September 2014 asserting that, since the Appellant had initially appealed in time and his appeal had been dismissed for the reasons given by Judge Pullig but with the observation made at [29] of the Decision, time ought to be extended for what would be in effect a second appeal.
10. The grounds included reference to a preliminary issue to be decided. The Appellant asserted that he qualified for a full right of appeal against the Respondent's decision based on Nirula (see [6] above). Leaving aside whether the Court of Appeal's judgment can bear the analysis placed on it by the Appellant's solicitors (that the Tribunal can "assume jurisdiction and/or air any doubts it has about its jurisdiction and invite submissions on that question") the reasons given for the assertion that there exists an in country right of appeal are wholly unmeritorious. It is argued that because of the severity of the allegation of deception, the Appellant should be given an in country right of appeal. That might be an argument which could be put forward by way of judicial review (although now likely to fail in light of Court of Appeal authority) but it runs completely contrary to the primary legislation set out in Part V of the 2002 Act. There is no reference to the statutory framework which applied prior to the Immigration Act 2014 to determine whether there was a right of appeal and, if so, the forum of that appeal. As such, those grounds were positively misleading.
11. We turn then finally to the grant of permission to appeal of First-tier Tribunal Judge Robertson dated 21 July 2016. As Judge Robertson rightly observes at [2] of his decision, there can be no question of a second appeal against the same decision of the Respondent. Accordingly, the appeal documents were treated as an application for permission to appeal. The reason for the grant is that the grounds were arguable because, as we have noted at [6] to [7] above, Judge Pullig's reasons for finding that he had no jurisdiction were procedural ones based on the lack of any reasons for refusal letter (which was itself incorrect on the facts). The Judge had also arguably overlooked the submissions made in the Appellant's skeleton argument. Judge Robertson therefore decided that it was arguable that Judge Pullig erred in deciding that he had no jurisdiction to hear the appeal and time was extended.
12. It is somewhat unfortunate that the grounds submitted by the Appellant's solicitors were misleading as we have already noted. We note the duty of solicitors appearing before both this Tribunal and the First-tier Tribunal not to mislead the Tribunal. We are also unimpressed by other conduct of this particular firm in failing to attend the hearing before us without any explanation and also, perhaps more importantly, failing to notify the Tribunal that the Appellant has left the UK, the effect of which is, as we note at [17] below, that the appeal must be treated as abandoned. This has led to the listing of an appeal for hearing unnecessarily with the impact that has on other appeals which could have been heard instead and a waste of the Tribunal's time and resources.
13. It is equally unfortunate though that the Presenting Officer in the First-tier Tribunal did not point out the obvious problems with validity of the appeal in this case and nor is the point raised in the Rule 24 statement (although we note that this may be because the appeal had by that stage to be treated as abandoned - a point with which we deal below). Indeed, the Rule 24 statement seeks to uphold Judge Pullig's Decision.
14. If we had been in the position of having to re-make the decision in the appeal, having found an error of law in Judge Pullig's Decision, we would have found that there was no valid appeal before us. The right of appeal generated by the Respondent's decision is one exercisable only from outside the UK unless a human rights claim is made (to the Respondent and not in the grounds of appeal). We have seen no evidence of such a claim being made to the Respondent and none has been expressly relied upon by the Appellant or his solicitors. We note of course that the Appellant was given an out of country right of appeal by the Respondent's decision dated 22 September 2014. He has now left the UK. He can therefore pursue an out of country appeal although it appears that he would now be outside the time for appealing.
15. We turn finally to the reason why there is no longer an appeal before us. Section 104(4) of the 2002 Act (which is a provision within Part V) provides as follows:-
"An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom"
16. Ms Ahmad pointed us to section 17A of the Tribunal Procedure (Upper Tribunal) Rules 2008 which provides as follows:-
"Appeal treated as abandoned or finally determined in an asylum case or an immigration case
17A. - (1) A party to an asylum case or an immigration case before the Upper Tribunal must notify the [Upper] Tribunal if they are aware that-
(a) the appellant has left the United Kingdom;
?
(2) Where an appeal is treated as abandoned pursuant to section 104(4) or (4A) of the Nationality, Immigration and Asylum Act 2002(d) or paragraph 4(2) of Schedule 2 to the Immigration (European Economic Area) Regulations 2006, or as finally determined pursuant to section 104(5) of the Nationality, Immigration and Asylum Act 2002, the Upper Tribunal must send the parties a notice informing them that the appeal is being treated as abandoned or finally determined."
17. We noted at [3] above, that part V of the 2002 Act which includes section 104(4) continues to apply to this appeal notwithstanding its repeal by the Immigration Act 2014. Accordingly, this appeal must be treated as abandoned.
Decision
The Decision of First-tier Tribunal Judge Pullig promulgated on 17 December 2015 contains an error of law. We would therefore have set that aside and substituted our own decision finding that there is no valid appeal before us. However, since the Appellant left the UK on 26 May 2016 and section 104(4) Nationality, Immigration and Asylum Act 2002 applies to this appeal, the appeal is to be treated as abandoned. We hereby give notice to that effect.

Signed: Dated: 7 October 2016

Upper Tribunal Judge Smith