Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42649/2014
IA/42656/2014
IA/42661/2014
IA/42668/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Determination Promulgated
On 18 March 2016
On 25 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

EVAN [U] (1)
[U U] (2)
[N U] (3)
[E U] (4)
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Mrs Petterson, Senior Home Office Presenting Officer

DECISION AND REASONS
1 This is an appeal against the decision of the First-tier Tribunal (Judge of the First-tier Tribunal Ghani) dismissing the Appellants' appeals against the Respondent's decisions in relation to each of them dated 7 October 2014, refusing to vary their leave to remain, and making decisions to remove them under section 47 Immigration, Asylum and nationality Act 2006.
2 The Appellants are nationals of Nigeria, being mother and three minor dependent children respectively. They entered the United Kingdom in 2008 with leave to enter as dependents of a person with leave to remain as a student (their husband/father respectively, who has since left the United Kingdom). They remained in the United Kingdom with leave to remain, the last period of leave to remain expiring on 6 August 2014. On that day, the Appellants applied, with the assistance of Ikon Law, Solicitors and Advocates, for further leave to remain on the grounds of the long residence of the children in the United Kingdom, and the first Appellant's caring role for them.
3 In the decisions dated 7 October 2014, the Respondent considered the positions of the applicants, found that the requirements of the immigration rules were not satisfied, considered the position of the children, and found that there were no grounds to grant leave to remain on Article 8 ECHR.
4 The Appellants appealed to the First-tier Tribunal by way of notices of appeal completed on 24 October 2014. In those notices, the Appellants requested an oral hearing of their appeals. A notice of hearing was subsequently issued giving notice to the Appellants that the appeals were to be heard at the First-tier Tribunal, Sheldon Court, Birmingham on 29 January 2015.
5 The appeals were actually listed in the float list at Sheldon Court that day. On 29 January 2015, i.e. on the day of the hearing, Ikon Law sent a faxed letter to the First-tier Tribunal at Sheldon Court applying for an adjournment of the hearing on that day, on grounds, in summary, that the Appellants had not been able to gather all the supporting evidence that they wished prior to the appeal. There was no indication in the letter that anyone intended to attend at Sheldon Court on that day.
6 There is a handwritten endorsement on the copy of the adjournment application which is in the Tribunal file, which reads:
"Refused" "The appellant has had sufficient time to prepare the appeal. The reasons given for wanting more time are inadequate given the interests of justice to avoid delay".
There is also in the papers on the Tribunal file a copy of a notice on form IA40 dated 29 January 2015 giving notice to the Appellants at that their application for adjournment of the appeal had been refused, with typed reasons identical to those on the handwritten endorsement I refer to above. Also recorded, by hand, on this form IA40 is a note as follows: "Phoned rep with refusal & faxed".
7 It is apparent, therefore, that the Appellants' representatives had been informed on 29 January 2015 that their application for an adjournment had been refused.
8 The decision of the judge dismissing the appeals was signed on 21 February 2015, and promulgated on 9 March 2015. The front face of the decision appears to indicate that the appeal was heard at Birmingham on 9 February 2015. Also recorded on the front face under the title 'representation' that is neither the Appellant nor Respondent were represented. Further, at paragraph 3 of the decision, the following is recorded:
"The parties have indicated that the appeal is to be determined on the basis of the documentation submitted to me all of which I have taken into account.'
9 The judge was clearly aware that an application for adjourn had been refused on 29.1.15. At pararaph11 the following is recorded:
"The Appellant's solicitors Ikon Law wrote to the Tribunal on 29th January 2015 requesting an adjournment. The appeals had been listed as float on 29th January 2015. The letter from the solicitors maintains that the Appellants had tried their best to gather all the supporting evidence from their home country and from here but have been unable to provide this in time for the hearing. The adjournment request was declined because the Appellants have had sufficient time to prepare the appeal."
10 The judge noted that no evidence and no bundle had been submitted on behalf the Appellants. The judge considered the nature of the application for leave to remain made by the Appellants, summarised the Respondent's reasons for refusing that application, and considered the merits of the appeals, dismissing them.
11 In an application dated 23 March 2015 for permission to appeal to the Upper Tribunal, the Appellants argued as follows (in manuscript):
'1. The Appellants repeat the grounds of appeal before the FT and submit that it is arguable that FT Judge Ghani has made an error by finding at paragraph 3 of his determination that both "parties have indicated that the appeal is to be determined on the basis of the documents submitted".
2. It is arguable that the Appellants solicitor letter dated 29/01/2015 was only a request for adjournment. The Appellant paid the court fee for oral hearing and when the case was not heard on 29/01/2015, it is arguable that it was not open to FT to treat the appeal as on 'papers only'.
3. It is arguable that the Appellants have been deprived from their statutory right for oral hearing and therefore have been prejudiced.
4. It is arguable that FT has made a material error of law and the breach of FT procedural rules.'
12 It in a decision dated 18th of June 2015, Judge of the First-tier Tribunal Pooler granted permission to appeal on the following grounds:
"The judge stated at [3] that the parties had indicated that the appeal was to be determined on the basis of the documents submitted to the Tribunal. He was arguably wrong in this respect. Moreover, there is no indication that the Appellants were given notice of a hearing on 9 February 2015. Arguably the requirements of rule 26 were not met and there was a procedural irregularity capable of making a material difference to the fairness of the proceedings."
13 The matter was subsequently listed for hearing before the Upper Tribunal and was in the list before me on 18 March 2016. Notice of this hearing was sent to Ikon Law solicitors and the Appellants on 18 February 2016. There was no appearance by or on behalf of the Appellants at the hearing before me. The Clerk to the Tribunal made enquiries of Ikon Law solicitors as to their intentions for today's hearing. I was subsequently provided with a note by my Clerk indicating that he had spoken to a Mr Khan from Ikon Law at 12:25pm, who had indicated that Ikon Law were without instructions from the client and therefore had not attended the hearing.
14 I was satisfied by seeing the notice of hearing to Ikon Law, and to the Appellants personally, and by reason of the conversation between my Clerk and Ikon Law Solicitors, that the Appellant had had notice of today's hearing. There was no application for adjournment by or on behalf of the Appellants in relation to today's hearing.
15 For her part, Mrs Pettersson relied upon the Respondent's Rule 24 response dated 25th of June 2015, which indicated that the Respondent was of the view that the First-tier Tribunal had directed himself in law appropriately.
Discussion
16 It is to be noted that the only challenge against the judge's decision is procedural; the grounds of appeal do not challenge the judge's reasoning in relation to the substantive dismissal of the appeal, and do not allege any misdirection in law in relation to the consideration of the Appellants' position under the immigration rules or their entitlement to leave to remain under article 8 ECHR. It is also to be noted that the grounds of appeal do not challenge the Tribunal's decision of 29 January 2015 to refuse the Appellant's adjournment request.
17 The nature of the challenge, on procedural grounds, is that it was not correct that the Appellants had indicated that the appeals were to be determined on the basis of documentation submitted to the Tribunal, and that it was not open to the Tribunal to treat the appeal as a 'papers only' appeal. There is also an inference drawn by judge Pooler in granting permission, that there was a hearing on 9 February 2015, to which the Appellant had not been given notice under rule 26 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
18 I perused all the papers in the Upper Tribunal file in my possession. It was not clear why the front face of the judge's decision would state that the appeal had been heard at Birmingham on 9 February 2015. I have not seen any notice of hearing issued giving notice of a hearing taking place on that date.
19 As the appeal was in the float list on 29 January 2015, it would not have been allocated to a specific judge's list at the start of the day. The file had obviously come to the attention of a judge at some point on that day, because the application to adjourn was refused in writing and communicated to the Appellants. At some point in time, the file must have been allocated to a judge for determination. That might have happened on 9th February, or before. I find that the reason for the date of 9 February 2015 appearing on the front face of the judge's decision is ultimately, unknown. However, I find that there is no evidence that a separately convened hearing took place after 29 January 2015; whether on 9 February 2015, or at all.
20 I do not find that the Appellants have experienced any unfairness, either by the date 9 February 2015 appearing on the front face of the decision, or in it being recorded at paragraph 3 that the parties had indicated that the appeal was to be determined on the basis of documentation submitted; nor by other reason. The judge was clearly aware of the refusal to adjoined on 29 January 2015 - this is clearly set out at his paragraph 11.
21 It is to be noted that the Appellants were not prepared for the appeal of 29th of January 2015. Their application of 29 January to adjourn was refused on that day. The judge was aware of that history. Following that refusal of adjournment, there appears to have been no further effort on the part of the Appellants to submit any evidence in support of the appeal, either on 29 January, or at any time thereafter. The expectation of the Appellants must have been that they would in due course receive a decision of the First-tier Tribunal determining the appeal that was listed on 29th of January 2015, taking into account the evidence that was before the Tribunal on that day. That is exactly what happened. The Appellants were not deprived of an oral hearing; they failed to attend it on 29 January 2015, and their written application for it to be adjourned was refused.
22 As noted above, the grounds of appeal take no issue with the decision to refuse an adjournment on 29 January 2015, nor is any issue taken with the reasoning of the judge in dismissing the appeal.
23 I find that there is no procedural irregularity in the judge's decision which in any way undermines the fairness of the proceedings, or at all.
Decision
There is no material error of law in the judge's decision, which I uphold.
The Appellant's appeal is dismissed.

Signed: Date: 22.10.16

Deputy Upper Tribunal Judge O'Ryan