Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA082522015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th May 2016
On 10th June 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

SHAHID ALI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Coleman, (Counsel)
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant a citizen of Pakistan (born 8th August 1988) appeals with permission against the decision of a First-tier Tribunal (Judge Oakley) which in a decision promulgated on 6th October 2015 dismissed his appeal against the Respondent's refusal to grant him further leave to remain as a Tier 2 (General) Migrant under the points-based system and giving directions for his removal from the UK.
Background
2. The Appellant entered the UK on 12th September 2013 in possession of a visa valid until 9th October 2016. On 22nd April 2014 this leave was curtailed, so as to expire on 25th November 2014.
3. On 24th November 2014 the Appellant made a combined application for further leave to remain as a Tier 2 Migrant and for a biometric residence permit. This application was considered and refused by the Respondent in a decision dated 9th February 2015 which sets out the reasons for the refusal. In summary the Appellant failed to provide a valid certificate of sponsorship reference number as required under Appendix A of the Immigration Rules and accordingly failed to score any points under the Attributes Section for sponsorship and appropriate salary.
4. The Appellant appealed the Respondent's refusal to the FtT. The Grounds of Appeal which although generalised, said that the Respondent's decision was unfair and against the Appellant's Article 8 ECHR rights.
The FtT Hearing
5. When the Appellant's appeal came before the FtT, he did not attend. His brother attended to renew a request for an adjournment of the hearing. On the day before the hearing, the Appellant's representatives had sent a fax letter, to the Tribunal requesting an adjournment. The fax letter outlined that the Appellant had been taken ill on 28th September (two days before the hearing) and that he had attended his GP practice. His GP referred him to hospital. His GP's notes were contained in that request for an adjournment. That adjournment request was considered by a duty judge but the application was refused.
6. On the day of the hearing, the Appellant's brother attended and renewed the adjournment application. The Appellant's brother informed the FtT that the Appellant had been ill and provided in evidence the discharge notification from Barking and Havering Hospital NHS Trust. This confirmed that the Appellant had been suffering from gastroenteritis and diarrhoea and had been discharged on a course of medication.
7. The FtT nevertheless decided to refuse the adjournment and to proceed with the hearing in the absence of the Appellant. It then went on to dismiss the appeal under "the immigration rules"
8. Permission to appeal was sought on the grounds that refusal of the adjournment request resulted in unfairness to the Appellant. Permission was granted by DJ Garrett in the following terms:
"1. The appellant applies to appeal against the decision of Judge of the First-tier Tribunal Oakley in which he dismissed the appeal against the decision of the respondent to refuse leave to remain as a Tier 2 (General) Migrant under the points-based system.
2. The grounds contend that the judge should have granted the adjournment requested by the appellant's brother who specifically attended the hearing to point out that the appellant was ill having just been discharged from hospital suffering from gastroenteritis and diarrhoea.
3. Whilst the judge gives reasons for refusing the adjournment on the basis that the medical evidence, despite confirming illness, did not indicate that the appellant was unfit to attend the hearing, it is arguable that, with the appellant's brother in attendance to apply for the adjournment, one should have been granted in the interests of fairness. Further, I note that the decision fails to deal with any human rights issues even though these were claimed in the grounds of appeal."
9. Thus the matter comes before me to determine whether the decision of the FtT contained such error that it requires to be set aside and re-made.
UT Hearing/ Error of Law
10. I am satisfied, after hearing submissions from both representatives, that the decision of the FtT contains material error such that the decision must be set aside and re-made. I find that the decision of the FtT to refuse the adjournment has resulted in the Appellant being deprived of his right to a fair hearing and furthermore I am satisfied that there was a failure to take into account material considerations in this case. My reasons for so finding are as follows.
11. There is documentation available to show that the Appellant's absence at the hearing was because of his medical illness, which resulted in him being admitted to hospital on 28th September two days before the due date of the hearing. The judge, in refusing the application seems not to have been in possession of all the medical documentary evidence which had been served on the Tribunal in support of the application. The judge in his decision says at [5], that the application had been made by the Appellant's brother and that he provided a discharge notification from the hospital. The judge goes on to say there was nothing to indicate in the discharge form that the Appellant was not fit to attend the hearing and there was no letter from his GP to state that he was unfit to attend.
12. What is correct to say is that there was detailed evidence which showed that the Appellant had attended his GP surgery on the afternoon of 28th September and that his GP had referred him for "immediate hospital attention." Whilst the documentary evidence from the Appellant's GP does not admit of the words "unfit to attend court" the judge appears to have overlooked the evidence that the appellant had been referred for immediate hospital attention and advised to rest for two weeks or so.
13. Mr Tufan did try to defend the FtT's decision, by pointing out that the judge had considered all the evidence before him and even so to date no valid certificate of sponsorship had been produced. He submitted that therefore although the judge may have erred, the error could not be said to be material.
14. I accept that Mr Tufan made a valid point and this is a matter the Appellant will have to address. However I disagree with Mr Tufan's submission that all the relevant evidence has been considered. Permission in this appeal was granted on two bases. The Appellant in his original Grounds of Appeal maintained that the Respondent's refusal amounted to a breach of his Article 8 ECHR private/ family life. as the grant of permission points out, that ground was not considered by the FtT. There ought to have been some reference made to it. The Appellant is entitled to have all parts of his claim considered, whatever the end result may be. To fail to do so amounts to a material error.
15. Accordingly I find the decision of the FtT must be set aside. The appropriate course which Mr Coleman urged upon me is to remit this appeal to the FtT for a fresh fact finding exercise to be undertaken. No findings are to be preserved from the hearing before Judge Oakley.

Notice of Decision

The decision of the First-tier Tribunal promulgated on 6th October 2015 is hereby set aside. I remit the matter to that Tribunal (not Judge Oakley) for a fresh hearing.

No anonymity direction is made.

Signed C E Roberts Date 09 June 2016

Upper Tribunal Deputy Judge Roberts