Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Numbers: IA060642015
IA060692015
IA060672015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 May 2016
On 9 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

[H N]
HAMIDJON SHODIYEV
MUNAVVAR ISMAILOVA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms J Norman, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The main appellant appeals against a decision and reasons before First-tier Tribunal (Judge Oliver) ("FTT") promulgated on 21 October 2015 in which s/he dismissed the appeal against the respondent's decision to refuse leave to remain with reference to Tier 4 and paragraph 322 (1A). The FTT determined the appeal on the papers in the absence of any appearance by the appellant. The appellant sent in a sick note and requested an adjournment, which was refused by a Duty Judge two days prior to the hearing. No representative attended for the First-tier hearing, although the appellant's representatives had written to the FTT to advise that the appellant would attend in person. In the event a representative for the respondent attended and no appearance was made by or on behalf of the appellant.

2. The issue under appeal was whether or not the appellant used false documentation in support of his application for leave under the PBS, with reference to paragraph 322(1A). The FTT found no reason why the appellant's wife could not have attended the hearing instead of the appellant. The FTT found that the sick note provided by the appellant was inadequate as it was a fitness for work note from his GP. The FTT took the view that the appellant's failure to provide a bundle for the hearing amounted to an acceptance of the facts alleged. The FTT found that the appellant failed to answer the allegation of fraud, the burden of proof was on the appellant and that the standard of proof was on the balance of probabilities.

Grounds of application for permission

3. The grounds of appeal settled by the appellant in person complained that the FTT was unfair to proceed to hear the appeal in his absence and/or to refuse an adjournment on the grounds that the sick note was inadequate. It is asserted that the appellant e-mailed further details of his illness on 7 October 2015.

Permission

4. Permission to appeal was granted by First-tier Tribunal Judge Page who took into account that the appellant was unrepresented and found arguable errors of law with reference to "Robinson obvious" points. He found it arguable that the FTT erred in applying the wrong burden of proof in the appeal with respect to paragraph 322(1A). It was also arguable that procedurally that an adjournment could have been granted on the basis of further evidence as to the appellant's illness.

Rule 24 response

5. The Respondent opposed the appeal whilst acknowledging that the burden was on the Secretary of State to show that false documentation was used. The evidence as to fitness to attend was in relation to fitness to attend work and not to attend the hearing.

The hearing re: error of law

6. At the hearing before me Ms Norman provided further evidence of the appellant's illness that had been sent to the FTT prior to the hearing and unfortunately it appeared that this evidence had not been put before the FtT judge hearing the appeal. There was a full medical report from the appellant's GP outlining various illnesses which prevented him from attending the Tribunal on 8 October 2015. There was in addition copies to confirm that this had been faxed to the FTT in advance of the hearing. Mr Brumble accepted that this was the position on behalf of the Respondent.

7. Accordingly I find that there are material errors of law in the decision and reasons which is set aside. Firstly, I find that the FTT applied the wrong burden and standard of proof, which in deception matters is on the Respondent, and the standard is the balance of probabilities with the need to produce strong and cogent evidence of deception. Secondly, I find a procedural error of law as the FTT failed to have regard to further medical evidence sent by the appellant in advance of the hearing and which was relevant to the decision to refuse an adjournment. It is common ground before me that the matter will now be heard de novo before the Hatton Cross Tribunal on a date to be fixed (excluding Judge Oliver).

Decision
8. There is a material error of law. The decision is set aside. The appeals are allowed. The matter will be remitted for rehearing at Hatton Cross.

No anonymity direction is made.

Signed Date 6.6.2016

Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award as the appeal issues need to be considered at a hearing.

Signed Date 6.6.2016

Deputy Upper Tribunal Judge G A Black