Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45758/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2017
On 10th April 2017

Before

UPPER TRIBUNAL JUDGE FINCH

Between

JANICE PEI WEN LEE
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No legal representation
For the Respondent: Mr. T. Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 20 January 1991, is a national of Malaysia. She had entered the United Kingdom for short periods of time in 2011, 2012 and 2013 in order to study and take examinations. She met her husband in the United Kingdom in 2012 and then re-entered the United Kingdom on 18 March 2014 with leave to enter as a student visitor which was valid until 18 September 2014. She married her husband in the United Kingdom on 26 May 2014 and applied for leave to remain as his spouse on 16 September 2014. Her application was refused on 24 October 2014 and a decision was made to remove her under section 47 of the Immigration, Asylum and Nationality Act 2006.

2. She appealed against this decision and her appeal was heard by First-tier Tribunal Judge Walters on 15 December 2015. Her appeal was dismissed in a decision and reasons promulgated on 6 January 2016. First-tier Tribunal Judge Holmes refused her permission to appeal on 15 December 2016 but Upper Tribunal Judge Grubb granted her permission to appeal on 20 February 2017.

3. He noted that, although the chronology of events was not entirely clear, it did appear that the Appellant had submitted medical evidence relating to her husband shortly before the hearing before First-tier Tribunal Judge Walters. He also noted that the hearing went ahead in the Appellant’s absence.

ORAL HEARING

4. The Appellant was not legally represented but was assisted by her Mackenzie Friend, Mr. Wilson. I asked the Home Office Presenting Officer to make his submissions so that the Appellant could better understand the case she had to meet. Mr. Melvin submitted that, as the Appellant had entered as a visitor, she was not entitled to leave to remain under the Immigration Rules. He also relied on the fact that she had chosen not to attend her appeal before the First-tier Tribunal, even when her hearing had not been adjourned. He also submitted that, as there were no very compelling circumstances in her case, any procedural error by the First-tier Tribunal Judge would not amount to a material error of law.

5. The Appellant then responded and said both she and her husband were very ill with a virus on the day of the hearing but that she had telephoned the Tribunal and spoken to a woman who had said that she would tell the judge that she was too ill to attend. She also stressed that she had handed further documents in by hand to the First-tier Tribunal and sent documents to the Home Office before the hearing. She also explained that on both occasions when her husband had accompanied her to Malaysia he had become very ill with a serious sickle cell crisis but was only given pain killers. She added that she was too afraid to ask him to return there with her even for a holiday. In reply, Mr. Melvin submitted that the Appellant had not provided any evidence to show that her husband would not be able to access suitable treatment in Malaysia and that her applications for adjournments had been a mere delaying tactic.

THE DECISION

6. The Appellant could not meet the requirements of E-LTRP.1.2.(c) of Appendix FM as she was in the United Kingdom as a visitor at the time of her application . Therefore, it was clear that the Appellant could not establish that she was entitled to leave under Immigration Rules and the findings made by First-tier Tribunal Judge Walters in relation to this issue were not unlawful.

7. In her application form, the Appellant said that her husband worked as a sales assistant at Hamleys and that his annual salary was £14,000, which was clearly less than the required £18,600. In addition, she had not provided the necessary payslips and bank statements. Therefore, she was also not able to meet the financial requirements of Appendix FM at the date of her application.

8. However, First-tier Tribunal Judge Walters also found in paragraph 30 that the Respondent had accepted that the Appellant had a genuine and subsisting relationship with her husband. Therefore, the First-tier Tribunal Judge found that they did enjoy family life together and that refusing her leave would be of sufficient gravity to amount to a breach of Article 8.(1) of the European Convention on Human Rights.

9. He also went on to consider whether such a breach would be proportionate for the purposes of Article 8(2). When doing so the First-tier Tribunal Judge correctly referred to section 117B of the Nationality, Immigration and Asylum Act 2002 and the fact that her previous leave had been precarious and that she had not established that she was financially independent. However, in relation to her husband’s medical condition the First-tier Tribunal Judge merely stated that she had produced no evidence to show that treatment was not available for sickle cell anaemia in Malaysia. (The First-tier Tribunal Judge was aware that the Appellant’s husband suffered from this condition as there was a letter from the Appellant, dated 20 July 2015, on the file asking for more time to obtain his hospital records.)

10. The issue is whether the First-tier Tribunal Judge’s decision to proceed with the hearing in her absence and without sight of the medical evidence was lawful. In the decision and reasons First-tier Tribunal Judge Walters did not specifically refer to rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. But he did consider whether the Appellant had been given notice of the hearing and correctly concluded that she had. The Judge also recorded that the Appellant did not attend the hearing and that no explanation for her absence had been received by the Tribunal. The Appellant said that she had left a message but there is no record of this on the file.

11. However, I note that at paragraph 10 of his decision and reasons, First-tier Tribunal Judge Walters states that he instructed the court clerk to contact Immigration Chamber, who were on record as representing the Appellant, and they did not reply. However, although Immigration Chamber went on record as representing the Appellant on 23 July 2015, they were not listed as her representatives on the notice for the hearing on 15 December 2015 and there was no mention of them in the letter sent by the Appellant to the Tribunal on 10 December 2015. Therefore, the fact that they were called would appear to be immaterial.

12. There is no record of any attempt to call the Appellant herself. In addition, although Mr. Melvin asserted that the Appellant was continually seeking to delay the proceedings, the amount of correspondence and additional evidence being submitted does not accord with this assertion. In any event, the second part of the test in rule 28 was whether it was in the interest of justice to proceed in the Appellant’s absence. The First-tier Tribunal Judge was aware of the letter, dated 10 December 2015, sent to the Tribunal and received on 14 December 2015. He was also aware that the Appellant had requested an adjournment as she had now received 300-400 pages of medical evidence and wished to submit it to the Respondent for her consideration. These were also factors which should have been weighed in the balance when deciding whether it was in the interests of justice to proceed in her absence.

13. The First-tier Tribunal Judge and Mr. Melvin also concluded that, as the request for an adjournment had arrived so late, the Appellant and her legal representative should have attended the hearing in any event. However, the First-tier Tribunal Judge did not remind himself of the test to be applied when refusing an adjournment. In paragraph 17 of the decision and reasons the First-tier Tribunal Judge merely stated that the letter had arrived too late for any judge to respond to it. This was not the case, as the letter was before First-tier Tribunal Judge Walters. At the top of the letter, dated 10 December 2015, it had been recorded as a request for an adjournment and the name of First-tier Tribunal Judge Walters and the court in which the hearing was to take place were also noted. The inference that can be drawn from this is that the First-tier Tribunal Judge Walters should deal with the adjournment request.

14. Furthermore, the First-tier Tribunal Judge had the power to adjourn the hearing under rule 4 of the Procedure Rules and, when doing so, the Judge should have taken into account the overriding objective in rule 2 of the Procedure Rules, which was to deal with cases fairly and justly.

15. The medical evidence which the Appellant wished to adduce was clearly material to whether there were exceptional circumstances in her case which may mean that she was entitled to leave to remain outside the Immigration Rules. Mr. Melvin confirmed that this evidence had not yet been considered by the Respondent and it was not before the Tribunal at the hearing. Therefore, it is in my view premature to assume that it could not give rise to exceptional or compelling circumstances for the purposes of Article 8(2) of the European Convention on Human Rights.

16. For these reasons I find that First-tier Tribunal Judge Walters did not apply the Procedure Rules correctly and, therefore, made material errors of law in his decision and reasons.

DECISION

17. The appeal is allowed.

18. First-tier Tribunal Judge Walters decision and reasons is set aside.

19. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge Walters.

Nadine Finch

Signed Date 6 April 2017

Upper Tribunal Judge Finch