Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47722/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 13 September 2016

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

Muhammad Sheraz
[No anonymity direction made]
Claimant

Representation:
For the appellant: Not represented
For the respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appeal of the Secretary of State against the decision of First-tier Tribunal Judge Khan promulgated 9.2.15, allowing the claimant's appeal against the decision of the Secretary of State, dated 8.9.14, to refuse his application made on 15.7.13 for leave to remain in the UK as a Tier 4 Student migrant. The Judge heard the appeal on 14.10.14.
2. First-tier Tribunal Judge Holmes granted permission to appeal on 20.7.16.
3. Thus the matter came before me on 12.9.16 as an appeal in the Upper Tribunal.
4. The appeal was dealt with in the First-tier Tribunal without representation on behalf of either the claimant or the Secretary of State. In respect of the Secretary of State's appeal to the Upper Tribunal, the claimant sent a letter requesting the appeal to be decided on the papers. However, the Upper Tribunal does not employ that procedure and, in any event, this is the appeal of the Secretary of State and she is entitled to be heard orally on the appeal. The claimant was notified of this and informed that it was up to him to decide whether to attend or not, but that the appeal would be dealt with as an oral appeal.
5. There was no attendance by or on behalf of the claimant but I am satisfied that he is aware of the hearing and that it is in the interests of justice to proceed.
Error of Law
6. For the reasons briefly set out below, I found no material error of law in the making of the decision of the First-tier Tribunal such as to require the decision of Judge Khan to be set aside.
7. I note from the case file that there is no copy of the Secretary of State's bundle present, only those documents submitted with the notice and grounds of appeal, including the claimant's indexed bundle. The refusal decision suggests that the claimant was invited to attend for interview on 22.8.14, which he failed to do so, and on which failure the application was additionally refused under paragraph 322(10) of the Immigration Rules.
8. The claimant complains that having received a letter dated 30.7.14 asking him to submit a new English Language test by 24.9.14, his application was refused on 8.9.14. He had attended a previous interview on 2.12.13. Effectively, the claimant asserts that he did not receive the invitation to interview on 22.8.14. Judge Khan found the Secretary of State failed to provide documentary evidence of invitation to interview and that the process was unfair, thus allowing the appeal on the limited basis stated.
9. I have searched the case file and can find no copy of the letter of invitation to interview. Mr Jarvis showed me a copy of the letter from his own file, dated 8.8.14, but that is not with the Tribunal's case papers.
10. Mr Jarvis very properly also drew my attention to a further difficulty in relation to the invitation to interview, that it was sent to the claimant at an address at Plashett Road, and another copy to what may have been his previous representatives, Go Global. That address is not that which the Tribunal has for the claimant, and not the address given in his notice of appeal. Mr Jarvis conceded that it could not be demonstrated that the invitation to interview was ever sent to the claimant at the correct address.
11. In granting permission to appeal, Judge Holmes misconstrued the earlier invitation to interview from 2013 as being the one referred to in the refusal decision, suggesting that as this was in the claimant's possession the Secretary of State was correct to apply paragraph 320(10).
12. I am satisfied that Judge Khan's decision was entirely correct on the information before the Tribunal at the time, and even now it has not been demonstrated that the claimant was invited to interview. The refusal decision was unfair to the claimant and not in accordance with the law.
Conclusions:
13. For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains allowed to the limited extent that it remains for the Secretary of State to make a decision in accordance with the law.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 13 September 2016

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order. Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the application remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 13 September 2016