IA/40996/2014

• Status of case: Unreported
• Hearing date: 3 Feb 2017
• Promulgation date: 16 Feb 2017
• Publication date: 22 Nov 2021
• Last updated on: 22 Nov 2021

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40996/2014


THE IMMIGRATION ACTS


Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 3rd February 2017
On 16th February 2017




Before

DEPUTY upper tribunal JUDGE RENTON


Between

Ilyas Muhammad
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Mr N Ahmed, Counsel instructed by Royal Solicitors
For the Respondent: Mrs H Aboni, Home Office Presenting Officer


DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Pakistan born on 27th March 1987. He first arrived in the United Kingdom in January 2009 when he was given leave to enter as a spouse until 13th April 2011. Thereafter the Appellant obtained successive periods of leave to remain in order to enjoy contact with his two children and then under the Domestic Violence Concession until 19th August 2014. The Appellant finally applied for indefinite leave to remain as the victim of domestic violence. This application was refused for the reasons given in the Respondent's letter of 30th September 2014. The Appellant appealed, and his appeal was heard by First-tier Tribunal Judge Grimmett (the Judge) sitting at Birmingham on 2nd February 2016. She heard the appeal in the absence of the Appellant and dismissed it for the reasons given in her Decision dated 4th February 2016. The Appellant sought leave to appeal that decision, and on 26th August 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The reasons given by the Judge for hearing the appeal in the absence of the Appellant are given at paragraph 9 of her Decision. She decided to proceed because she was satisfied that the Appellant and his representatives had been notified of the hearing date, and because there was no explanation for their absence.
4. At the hearing before me, Mr Ahmed referred to his Skeleton Argument and the grounds of application and submitted that there had been a material error of law being a procedural unfairness. The Appellant had been denied the opportunity of giving evidence at a hearing and of presenting his case through his representatives. The fact of the matter was that the Appellant and his representatives had failed to attend the hearing because they had not been notified of such. There was a history of post going astray at the Appellant's address, and it was clear from the history of the appeal that the Appellant wished to attend the hearing. He and his representatives had attended the Tribunal on the two previous occasions when the hearing had been adjourned because of the lack of an appropriate interpreter.
5. In response, Ms Aboni referred to the Rule 24 response and argued that there was no such error of law. The Judge had given proper reasons for her decision to proceed at paragraph 9 of the Decision. There had been no procedural unfairness as the Notice of Hearing had been served in the proper way.
6. No blame is to be attached to the Judge who decided to hear the appeal in the absence of the Appellant as there was no explanation for the absence of him and his representatives. However, such an explanation has now been furnished and I find that the decision to proceed was a procedural unfairness and therefore a material error of law. The Appellant has given a credible explanation for the failure of him and his representatives to receive the Notice of Hearing, and proceeding in the Appellant's absence was therefore contrary to the overriding objective given in Rule 2(2)(c) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I therefore set aside the decision of the Judge.
7. I decided not to remake the decision in the appeal. That will be remade by the First-tier Tribunal in accordance with paragraph 7.2(a) of the Practice Statements.

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 that decision.
The decision in the appeal will be remade in the First-tier Tribunal.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.



Signed Dated

Deputy Upper Tribunal Judge Renton