Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46808/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 15th January 2016
On 22nd February 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr nadeem akhtar
(ANONYMITY ORDER not made)
Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Riaz Khan (Solicitor)
For the Respondent: Mr David Mills (HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Lodge, promulgated on 24th February 2015, following a hearing at Birmingham on 4th February 2015. In the determination, the judge allowed the appeal of the Appellant under the Immigration Rules, whereupon the Respondent Secretary of State, applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Pakistan, who was born on 15th April 1979. He appealed against a decision dated 28th October 2014 of the Respondent to refuse him leave to remain in the UK, on grounds that the recent decision of Judge Prior had been received by the Respondent on 15th November 2013. The Appellant, however, contended that he did not receive that decision with the written reasons until 2nd January 2014. His application, therefore, was not out of time because he had made it within a week of having received that determination.
The Judge's Findings
3. At the hearing before Judge Lodge, there was an application for an adjournment by the Appellant's representative to enable an enquiry to be made with the Tribunal Service as to the precise date that the written reasons were issued to the Appellant, and more generally to investigate the question of whether the service of written reasons could be so long delayed. This was a case where the Appellant had been granted a five year work permit which expired on 22nd August 2012. He had submitted an application for indefinite leave to remain on 21st August 2012. The judge found that that application was in time. The appeal against the refusal of indefinite leave was heard and dismissed and the judgement promulgated on 14th November 2013. The Appellant then had fourteen days from receipt of the written reasons to request permission to appeal the decision. The Tribunal had received the request not later than fourteen days after the date on which the applicant was provided with written reasons for the decision. In this case, the Appellant contended that the decision and the reasons were posted to him on 24th December 2013.
4. The judge went on to refuse the application for an adjournment and gave his reasons for doing so. However, he allowed the appeal on the basis that if one looks at the evidence then it is easy to conclude that the Appellant was not sent the written reasons until they were posted to him on 24th December 2013. The judge went on to say that,
"I cannot accept the alternative that the Appellant has received some other post from the Tribunal service and used that date stamp in order to give the impression that the written reasons were received later than they in fact were. As Mr Khan, said following the issue of written reasons, there was no other reason for the Tribunal service to contact the Appellant. I find this a fact therefore that having regard to the Tribunal Rules the written reasons were not received by the Appellant until 2nd January 2014." (See paragraph 14).
5. The judge went on to say that the appeal would be allowed because the application had been made in time.

Grounds of Application
6. The grounds of application state that the Appellant had not made an application for leave to remain in time and consequently he could not say that the had the benefit of existing leave on 31st January 2014 by which time his said leave would have expired.
The Hearing
7. At the hearing before me, however, Mr Mills, appearing on behalf of the Respondent Secretary of State, submitted that if one looked at the Appellant's SET(O) form, which Mr Mills helpfully handed up to the Tribunal, it is clear from this that the date of receipt of this form is stamped at the top left hand corner. This is given as 23rd August 2012. This being so, it must have been posted the day before. That would have been 22nd August 2012. The Appellant's leave did not expire until 22nd August 2012. The point was not argued before the judge. Therefore, the judge did not deal with it. The present Rules state that the date of the postal application is the relevant date rather than the date of receipt. If the application was posted on 22nd August 2012 then it was in time. Therefore, the Respondent Home Office's appeal would have to be dismissed.
8. For his part, Mr Riaz Khan submitted that he could not disagree with that.
No Error of Law
9. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are that this is clearly a case where the application was made in time, at the time when the Appellant had existing leave to remain, which was 22nd August 2012 and it was received by the Respondent on 23rd August 2012. On the evidence before him, the judge below had properly so found. To his credit, Mr Mills has confirmed that this is indeed the correct position and for this reason the appeal of the Home Office must be dismissed.
Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 13th February 2016