Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13329/2014
IA/13334/2014
IA/13339/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 October 2016
On 4 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Muhammad [A]
Shumaila [R]
[K R]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Biggs, instructed by Hanson Young, Solicitors.
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal (Judge S Taylor) issued on 23 July 2015 dismissing their appeals against the respondent's decision made on 28 February 2014 refusing the first appellant further leave to remain as a Tier 1 (General) Migrant, the second and third appellants being his dependants.

Background

2. The first appellant is a citizen of Pakistan born on 14 September 1978. The second and third appellants are his wife and child born on 14 April 1981 and 6 September 2007 respectively. The first and second appellants have subsequently had two further children born in the UK.

3. The first appellant first arrived in the UK on 6 July 2004 with leave to enter as a student. On 8 March 2011 he applied for leave to remain as a Tier 1 (General) Migrant but this application was refused on 2 January 2013. The respondent was not satisfied that he was able to meet the requirement of the Rules as he failed to show that he had the required level of earnings but on the contrary was satisfied that documents had been submitted in support of the application which were false and the application was therefore also refused under para 322(1A) on the basis that the first appellant had used deception.

4. The appellants appealed against this decision and in the notice of appeal sought an oral hearing. However, on 25 June 2014 their former representatives sent a written notice to the Tribunal to withdraw the first appellant's appeal. The purpose of withdrawing was so that the first appellant could pursue an application for indefinite leave to remain based on long residence. However, the intention was that the second and third appellants' appeal would be pursued and in a letter from the appellants' representatives dated 30 March 2015, they indicated that they wished the appeal to proceed not as an oral hearing but as an appeal to be decided on the papers.

5. The appeal was duly allocated for decision. The judge noted that the first appellant had withdrawn his appeal but proceeded on the basis that this appeared to have been reversed and that his appeal had been reinstated. He found that the first appellant was unable to meet the requirements of the Rules and that the respondent had demonstrated that one of the documents submitted in support of the appeal relating to one of the sources of claimed income was false. The judge dealt briefly with the issue of whether the first appellant had accrued ten years' lawful residence but found that there was insufficient evidence to establish this. He also considered article 8 and the best interests of the children but found that family life could continue in Pakistan. Accordingly, the appeal was dismissed.

6. Meanwhile, the first appellant's application for further leave to remain on the basis of long residence had been refused in May 2015 and he appealed that decision. In October 2015 the first appellant instructed his current solicitors to deal with his appeal against that decision and in April 2016 they were instructed to deal with what were thought to be the pending appeals of the second and third appellants in this appeal. In April 2016 they made a written request to link the appeals for a joint hearing. On 9 May 2016 the representatives received the decision in the present appeal. It is the appellants' submission that further enquiries with the Tribunal confirmed that the notice of reinstatement of the appeal had never been issued to the first appellant and the decision currently under challenge had only been sent to his former solicitors in July 2015 and had never been sent to the appellants. They have made enquiries with their former solicitors about whether they had in fact received the decision in July 2015 but that at the time of drafting the grounds of appeal no detailed response had been received.

7. The First-tier Tribunal extended time for appealing and granted permission to appeal on the basis that the grounds indicated that the appellants may well have been a victim of procedural unfairness.

8. At the hearing before me Mr Biggs indicated that the appeal in the First-tier Tribunal in respect of the decision refusing the first appellant's leave to remain on the grounds of long residence had been adjourned on 12 July 2016 pending the outcome of this appeal in respect of which he submitted that the First-tier Tribunal had erred in law by determining the appeal by the first appellant when it had been withdrawn. The decision had concentrated on the issues relating to the first appellant and in consequence, so he submitted, the appeals of the second and third appellants had not been given adequate consideration and, in particular, the judge had failed properly to consider the public interest in the light of the provisions of s.117B of the Nationality, Immigration and Asylum Act 2002 or the best interests of the children in the context of the assessment of article 8. He submitted that the decision should be set aside and remitted for the appeal to be reheard with the appeal pending against the long residence decision.

9. Ms Brocklesby-Weller did not seek to resist this course of action, agreeing that the appeals relating to the second and third appellants had been adversely affected by the adverse findings made by the judge in respect of the first appellant's appeal.

10. For these reasons I am satisfied that the judge erred in law and that the decisions should be set aside. The appeal by the first appellant had not in fact been reinstated and it follows that as the appeal was withdrawn the judge had no jurisdiction to determine that issue although one might well sympathise with the judge as the position may not have been entirely clear from the appeal file. The decisions in respect of the second and third appellants are set aside. Both representatives agreed that the proper course would be for their appeals to be reheard in the First-tier Tribunal and linked with and heard together with the appeal by the first appellant pending at Taylor House under number IA/21836/2016, adjourned on 12 July 2016 to await the outcome of this appeal.

Decision

11. The First-tier Tribunal erred in law. There was no jurisdiction to hear the appeal by the first appellant. The decisions in relation to the second and third appellants are set aside. Their appeals are remitted to the First-tier Tribunal to be heard together with the appeal by the first appellant in IA/21836/2016 pending at Taylor House. An anonymity order was not made in the First-tier Tribunal.

Signed H J E Latter Date: 3 November 2016

Deputy Upper Tribunal Judge Latter