Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/44212/2014
PA/03173/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 December 2017
On 11 January 2018

Before

UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE SMITH

Between

J M
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Malik, Counsel, instructed by Saj Law Chambers
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was not made by the First-tier Tribunal. However, the two appeals before us include a protection claim. It is accordingly appropriate that a direction be made. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies amongst others to all parties. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

1. These matters came before us as an appeal by the Appellant against a decision of First-tier Tribunal Judge Bart-Stewart promulgated on 11 April 2016 in relation to appeal number IA/44212/2014 ("the First Decision").
2. We do not need to deal with the substance of that appeal in light of the way in which the hearing before us proceeded. It suffices for us to set out the factual background to the application for permission to appeal the First Decision and the reasons given by Upper Tribunal Judge Finch when granting permission on 12 September 2017 as follows:-
"The Appellant is appealing against the decision by First-tier Tribunal Judge Bart-Stewart to dismiss his appeal against the decision that she had no jurisdiction to hear his appeal.
On 23 July 2014 the Appellant had applied for leave to remain in the United Kingdom. This application was refused but the basis of his application raised protection issues. Therefore, at the appeal hearing listed on 28 July 2015 First-tier Tribunal Judge Ross adjourned the hearing so that the Respondent could determine the Applicant's protection claim. The appeal was then re-listed for 29 March 2016, when it came before First-tier Tribunal Judge Bart-Stewart.
The Appellant and his solicitors had been put on notice of the date of this hearing on 11 December 2015 but it was not until 23 March 2016 that they received a decision refusing the Appellant asylum. This was the day before Maundy Thursday and the hearing was listed for the Tuesday after Easter Monday. Therefore, the Appellant's solicitors faxed the First-tier Tribunal refusing an adjournment as the Appellant had not been provided with the appropriate time to appeal against the decision to refuse him asylum and they did not have sufficient time to prepare for an asylum appeal. There is a fax call report on file, which confirms that the request for an adjournment was received by the First-tier Tribunal at 20.48 on 23 March 2016.
It does not appear that the Tribunal responded to this request or that the application for an adjournment was put before First-tier Tribunal Judge Bart-Stewart. In her decision she just noted that the Appellant and his legal representatives did not appear at the hearing and that the latter's telephone went to voice mail. She was in possession of the asylum bundle, including the asylum refusal letter, which was dated 18 March 2016. The decision does not indicate when the decision was sent to the Appellant and the First-tier Tribunal Judge did not consider that, even if it had been received on 21 March 2016, this would not have provided the Appellant with 14 days to articulate his appeal against the asylum decision before the date of the hearing.
On 31 March 2016 the Appellant did appeal against the decision to refuse him asylum and this appeal was allocated the number PA/03173/2016. Directions were given and it was set down to be heard on 27 September 2016. It came before First-tier Tribunal Judge Green. At the hearing neither representative was aware of First-tier Tribunal Judge Bart-Stewart's decision.
First-tier Tribunal Judge Green proceeded to hear evidence in relation to the asylum appeal and it was only after the hearing that he was provided with the earlier decision and file IA/44212/2014. He then decided that until the earlier decision was set aside he had no jurisdiction to hear the asylum appeal. He also found that the Appellant and his solicitors were not aware of the earlier decision.
I find that there was a procedural error of law in the manner in which the appeal under IA/44212/2014 was decided. The application for an adjournment was not considered by the First-tier Tribunal or First-tier Tribunal Judge Bart-Stewart. Furthermore, the Appellant was not provided with the necessary time to appeal against the decision to refuse him asylum.
The problem was exacerbated by the Tribunal generating a further appeal number (PA/03173/2016) and listing that appeal.
I find that it is in the interests of justice to extend time for the Appellant to appeal against the decision by First-tier Tribunal Judge Bart-Stewart in order for the inadequacies in procedure to be explored and his right of appeal against the decision to refuse him asylum to be heard according to international and national law to be respected.
As a consequence, I find that there were arguable errors of law in the First-tier Tribunal Judge's decision."
3. As appears from this grant of permission to appeal, also relevant to the issues before us are the facts of appeal number PA/03173/2016. That appeal was an appeal against the Respondent's decision dated 18 March 2016. It was determined by First-tier Tribunal Judge Green by a decision promulgated on 7 November 2016 ("the Second Decision"). It appears from the Second Decision that Judge Green heard evidence and submissions at the hearing before him but then concluded that he did not have jurisdiction. He allowed time for the parties to provide submissions. As a result of those submissions, he concluded that there was in fact no valid appeal before him.
4. The Second Decision was itself the subject of an application for permission to appeal which was refused first by the First-tier Tribunal Judge and secondly by Upper Tribunal Judge Pitt in a decision dated 3 February 2017. She refused permission to appeal in that case in the following terms:-
"1. The appellant, a citizen of Pakistan, appealed against the respondent's decision to refuse his claim on asylum and human rights grounds.
2. First-tier Tribunal Judge (FTTJ) Green heard the appeal on 27 September 2016. He found that he had no jurisdiction. This was because an appeal against the same Home Office decision had already been dismissed in appeal number IA/44212/2014 by FTTJ Bart-Stewart, her determination being promulgated on 11 April 2016.
3. The FTTJ did not err in finding no jurisdiction. The appellant has a right of appeal against the decision of First-tier Tribunal Judge Bart-Stewart. Having obtained the file for IA/44212/2014 it is apparent that he is in the process of exercising that right of appeal and an application for permission to appeal to the First-tier Tribunal dated 23 December 2016 awaits a decision. The appellant's arguments that he was not aware of the hearing before FTTJ Bart-Stewart taking place and an application for an extension of time can be addressed by the First-tier Tribunal in that application.
4. The grounds do not show an error on a point of law."
5. As will be apparent from the foregoing, although the Second Decision was the second in time in the First-tier Tribunal, the refusal of permission to appeal by the Upper Tribunal preceded the grant of permission to appeal of the First Decision. Accordingly, UTJ Pitt when refusing permission to appeal against the Second Decision did not have the benefit of the reasons given by UTJ Finch when granting permission to appeal the First Decision and did not have a full picture of what had happened.
6. The Respondent's decision refusing asylum and humanitarian protection was dated 18 March 2016 and was made very shortly prior to the hearing before Judge Bart-Stewart in appeal number IA/44212/2014 on 29 March 2016. When making that decision, the Respondent expressly gave the Appellant a further right of appeal against that decision. It is for that reason that there are in fact two appeals before us; appeal number IA/44212/2014 which does not concern asylum and appeal number PA/03173/2016 which does.
7. It was accepted in discussions before us that Judge Bart-Stewart erred in law in her conclusion that she also had before her an appeal against the Respondent's decision refusing asylum. The Respondent had expressly given a second right of appeal against that decision which the Appellant had exercised (giving rise to appeal number PA/03173/2016). Furthermore, by the date of the hearing before FTTJ Bart-Stewart, the Appellant's time for lodging an appeal against the asylum decision had not expired. Judge Bart-Stewart should not have determined the appeal against the asylum decision as that was the subject of a separate appeal. There is for that reason a material error of law in the First Decision. We agree with the parties that it is appropriate that we set aside the First Decision and remit appeal number IA/44212/2014 to the First-tier Tribunal for re-determination.
8. That leaves us then with appeal number PA/03173/2016. As is apparent from the decision of UTJ Pitt which we cite at [4] above and from what we say about the error of law in the First Decision, FTTJ Green was wrong in the Second Decision to conclude that there was no valid appeal before him in PA/03173/2016 because an appeal against the asylum decision had already been considered and concluded by FTTJ Bart-Stewart. It follows that UTJ Pitt was also therefore wrong to find that there was no material error of law in the Second Decision.
9. There has been no "Cart" challenge to Judge Pitt's decision. In discussions with the representatives before us, we considered whether it was open to us to set aside Judge Pitt's decision applying Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("Rule 43") in the circumstances of this case.
10. Rule 43 reads as follows (so far as relevant):-
"[43](1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if -
(a) the Upper Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are -
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;
?.
(d) there has been some other procedural irregularity in the proceedings."
11. Judge Pitts' decision is clearly one which disposes of proceedings there having been no application to judicially review that decision. We have already indicated that there is an error of law in the First Decision. As we have also noted, when Judge Pitt made her decision refusing permission to appeal the Second Decision, she did not have the benefit of Judge Finch's grant of permission against the First Decision and was not therefore aware when she made her decision that the First Decision contained an error of law which was material to the Second Decision. We take the view that this is capable of falling within the definition of "some other procedural irregularity" in the proceedings relating to appeal number PA/03173/2016. The procedural irregularity first arose in appeal number IA/44212/2014 and Judge Pitt was not made aware of that irregularity when she reached her decision in appeal number PA/03173/2016 thereby constituting a procedural irregularity in that latter appeal.
12. For those reasons and because we consider that it is in the interests of justice to do so we set aside Judge Pitt's decision. The effect of the setting aside of Judge Pitt's decision is that we need to whether permission to appeal should be granted in appeal number PA/03173/2016.
13. We think it is clear from what we have already said that it is appropriate to grant permission to appeal. There was a misapprehension by Judge Green when reaching the Second Decision that he had no jurisdiction to deal with the appeal. For the reasons we have already given, it is clear to us that he did in fact have jurisdiction. Accordingly, we grant permission to appeal.
14. In all the circumstances of this case, we consider that bearing in mind the overriding objective, it would be in the interests of justice to waive any failures to comply with the Tribunal Procedure (Upper Tribunal) Rules 2008 and as necessary to grant extensions of time and/or abridge time limits.
15. It follows that there is an error of law in the Second Decision. We therefore set aside also the Second Decision. It is appropriate for the re-making of the decision in both appeals to be dealt with by the First-tier Tribunal. We remit both appeals to the First-tier Tribunal. We direct that the hearing of both appeals take place together in order that they can deal with all issues in relation to this Appellant.

Decisions
IA/44212/2014
1. We are satisfied that the decision of First-tier Tribunal Judge Bart-Stewart promulgated on 11 April 2016 contains a material error of law. We set aside that decision and remit the appeal to the First-tier Tribunal for re-determination by a Judge other than Judges Bart-Stewart or Green.
PA/03173/2016
2. Pursuant to Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we set aside the decision of UTJ Pitt dated 3 February 2017 refusing the Appellant permission to appeal against the decision of FTTJ Green promulgated on 7 November 2016.
3. We grant permission to appeal against the decision of FTTJ Green promulgated on 7 November 2016 on the basis that it contains an arguable error of law.
4. We are satisfied that the decision of FTTJ Green promulgated on 7 November 2016 contains a material error of law. We set aside that decision and remit the appeal to the First-tier Tribunal for re-determination by a Judge other than Judges Bart-Stewart or Green.
5. Appeal numbers IA/44212/2014 and PA/03173/2016 should be linked and heard together so that the Judge hearing the remitted appeals can deal with all issues in relation to the Appellant.

Signed Dated: 10 January 2018

Upper Tribunal Judge Smith