Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49017/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

suchit bhupindrabhai desai
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr I Jarvis, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of India, born 16 September 1986. He entered the United Kingdom in 2009 with leave to enter as a student. This leave was later extended, so as to be conferred until 10 May 2014. On 12 May 2014 the appellant submitted a human rights application, but this was treated as invalid due to non-payment of the required fee.
2. Thereafter, the Secretary of State made a decision to remove the appellant as an overstayer on 4 December 2014. The appellant appealed this decision to the First-tier Tribunal on or around 10 December 2014 and two days later made a further human rights claim, which was refused on 22 December 2014 and certified as clearly unfounded pursuant to Section 94(3) of the Nationality, Immigration and Asylum Act 2002.
Decisions of the FtT - jurisdiction
3. The appeal came before First-tier Tribunal Judge Doyle on 11 December 2014, sitting as a Duty Judge in Arnhem House, Leicester. Judge Doyle's decision is headed "Decision on preliminary issue - validity". It identifies the respondent's submission as being that there was no right of appeal against the 4 December 2014 decision (I observe at this juncture that the decision of 4 December 2014 itself identifies that in the Secretary of State's view there was a right of appeal against it) and goes on to say:
"3. The Appellant therefore relies on Basnet (validity of application - respondent) Nepal [2012] UKUT 113, which held that if the respondent maintains that an application was not accompanied by a fee (and so is not valid) the respondent has the onus of proof. Further, that the respondent's system of processing payments with postal applications risks falling into procedural unfairness.
4. Mindful of the dicta in Basnet I direct
(a) That the appeal is listed for a substantive hearing.
(b) That at the substantive hearing the issue of validity be decided.
(c) At least 14 days prior to the substantive hearing the respondent lodge with the Tribunal and serve on the appellant any information showing that the correct fee was not paid.
(d) At least 14 days prior to the substantive hearing the appellant lodge with the Tribunal and serve on the respondent information showing how he attempted to pay the fee..."
4. The matter then came before First-tier Tribunal Judge M A Khan on 6 July 2015. Judge Khan did not deal with the issue of jurisdiction and wrongly identified the decision under appeal as being the refusal/removal decision of 22 December 2014.
5. A notice of hearing had previously been sent to the appellant on 21 February 2015, at the address provided by him for service. That notice also set out a series of directions to the parties. The appellant did not attend the hearing, provided no explanation for his absence to Judge Khan for not attending, and did not seek an adjournment of the hearing.
6. As identified above, in his decision Judge Khan did not, contrary Judge Doyle's decision, consider the issue of jurisdiction - but rather determined the substantive issue in the appeal i.e. whether the appellant's removal would lead to a breach of Article 8 ECHR. Having done so Judge Khan dismissed the appellant's appeal.
7. The appellant sought permission to appeal to the Upper Tribunal on the basis that he had not been aware that the hearing of 6 July 2015 was intended to deal with the substance of his appeal, and thus he did not attend
8. In granting permission to appeal Upper Tribunal Judge Hanson was unimpressed by that ground but granted permission on the issue of jurisdiction (a ground not pleaded), which had not been resolved by Judge Khan. Thus the matter came before me.
9. Before the Upper Tribunal Mr Jarvis quite properly accepted that there was no issue as to jurisdiction. The First-tier Tribunal had jurisdiction and both Judge Doyle and Judge Hanson had misunderstood the relevance of the appellant's application of 12 May 2014 which the Secretary of State had rejected as invalid because of non-payment of the required fee. This concession is plainly correct.
10. The application of 12 May 2014 postdates the date of the expiry of the appellant's leave (10 May 2014). Consequently, even if it had been a valid application his leave would not have been extended pursuant to Section 3C of the Immigration Act 1971 as a consequence of such application having been made. Therefore, any decision to refuse a later application could not under any circumstances have brought the appellant's leave to end. That leave had already been brought to an end by the effluxion of time.
11. Second, the decision under appeal before the FtT was in fact the decision of 4 December 2014 to remove the appellant from the United Kingdom. This was appealable of itself pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002.
Discussion and Decision
12. Having invited the Tribunal to accept that it and the First-tier Tribunal had jurisdiction, Mr Jarvis submitted that the FtT's decision on the substance of the appeal was legally sound and should not be interfered with.
13. I observe at the outset that the identification by Judge Khan of the wrong decision under appeal had no material impact. The Judge looked at whether the appellant's removal would breach Article 8 ECHR, as he was required to do. The fact that he did so in the context of the later decision was irrelevant because the judge was required, and did, look at the circumstances as of the date of hearing - at least insofar as they were before him.
14. Moving on to the issue of procedural fairness raised by the appellant. The appellant accepts that he had notice of the hearing of 6 July 2015 and also that he had Judge Doyle's decision prior to that date. It is absolutely plain from both Judge Doyle's decision and the notice of the hearing, that the hearing before the First-tier Tribunal of 6 July 2015 was to deal with both the issue of jurisdiction and the substantive appeal.
15. Furthermore, the appellant accepts (i) that he was required to, but did not, send any documents to the Tribunal in compliance with the directions and (ii) that there was no significant matter, relating to his personal circumstances, of which Judge Khan had notice that was left out of account by the judge in his decision. It is noteworthy that Judge Khan refers to legal representations made by the appellant (paragraph 11) as the foundation of the appellant's claim. Those representations highlight the relatively short period of time that the appellant has been in the United Kingdom, the fact that he has built up ties with his friends here and assert that to return him to his own country would cause him to lose those ties and feel depressed. It is also said that the appellant is 'currently' depressed as a consequence of the uncertainty stemming from his immigration situation.
16. Before the Upper Tribunal the appellant identified that his father had passed away in India in 2010 and that he had not been able to travel back to India since then. He further stated that as a consequence his family members were no longer speaking to him. These were not matters that were before the First-tier Tribunal and, in my view, are also not matters that are capable of affecting the outcome of the appeal.
17. In short, I concur entirely with Upper Tribunal Judge Hanson's analysis of the grounds pleaded by the appellant, i.e. that they do not disclose any procedural unfairness. In addition, even if there were such unfairness, the facts of this case as presented to both the First-tier Tribunal and the Upper Tribunal are not such so as to be capable of leading to a decision in the appellant's favour on the Article 8 ground.
18. The appellant plainly does not meet the requirements of the Immigration Rules and there are no circumstances outside the Rules of a compelling nature that should or even could lead to the conclusion that his removal would breach Article 8 ECHR.
19. For these reasons the decision of the First-tier Tribunal, despite the identification by Judge Khan of the wrong decision as being that which was under appeal, is legally sustainable, free from material error and is to remain standing.
Decision
20. The decision of the First-tier Tribunal does not contain an error of law capable of affecting the outcome of the appeal and is to remain standing.

Signed:

Upper Tribunal Judge O'Connor