Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal NumberS: IA/16701/2015
IA/16702/2015
IA/16703/2015
IA/16704/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 19 December 2016
On: 23 January 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Saida [M]
Fredy [M]
[A H B]
[W H B]
no anonymity directions made
Appellants
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr S Naqvi, Irvine Thanvi Nata Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellants are nationals of Bolivia, born on 1 November 1978, 10 July 1969, 11 August 2007 and 11 March 2013 respectively. Their appeals against the respondent's decision to refuse their applications for leave to remain under the Immigration Rules were allowed to the limited extent that the matter was returned to the respondent to consider the children's best interests "and her interpretation of Exception EX.1."
2. On 16 November 2016, Upper Tribunal Judge Macleman granted the appellants permission to appeal on the basis that the First-tier Tribunal Judge reached his decision without giving the appellants a fair opportunity to deal with issues not previously put to them and moreover made findings of fact about their international movements which may be shown by the letter from the Bolivian embassy constructively to amount to an error of law, and which may require the decision to be set aside.
3. He also noted that although there was no cross appeal by the respondent, and that the matter was not raised by the appellants, the terms of the Judge's disposal may also require consideration.
4. Mr Naqvi, who represented the appellants before the First-tier Tribunal, contended that during the course of the hearing on 22 April 2016, the Judge did not at any stage mention the serious point about the appellants' apparent "illegal cross border movement" at [32]. Nor did he ask the appellants any "logical questions" to decipher the facts. Nor was the representative afforded the opportunity to ask the appellants any questions to address the Judge's concerns about the appellants' apparent illegal cross border movement or make submissions in relation to that point.
5. This was a case where the Home Office was unrepresented.
6. It was also contended that it was "wholly illogical" for the Judge to find that the parents who are without status and who are accompanied by young children, would be allowed to depart to visit Spain and then Bolivia and then return to the UK on two separate occasions.
7. He submitted that the appellants have managed to obtain a letter from the Bolivian Embassy dated 6 June 2016 which confirmed that the appellants applied for a new document, namely a new Bolivian passport, at their consular offices in London, and that some of the Bolivian passports had been printed by their immigration office at La Paz and the other Bolivian passport in their branch in Madrid.
8. Had this issue been raised by the respondent in the refusal letter, the appellants would have been able to approach the Bolivian embassy in support of their appeal. In the event that the Judge had raised this point at the hearing, the appellants would have made an application to adjourn so as to enable them to obtain this letter.
9. In the circumstances, the finding by the Judge at [40] that there was illegal cross border movement is grave and affects the other findings and credibility.
10. Mr Naqvi produced a letter dated 6 June 2016 from the Consular Selection of the Embassy of Bolivia in London certifying that the appellants applied for a new document in their consular office in London, some of them had been printed by the immigration office in La Paz and the other in their branch in Madrid.
11. In the circumstances, Mr Singh very fairly accepted that there has been a material error of law affecting the subsequent findings by the Judge.
12. In the circumstances the parties agreed that the decision of the First-tier Tribunal should be set aside and thereafter remitted to the First-tier Tribunal at Hatton Cross for a fresh decision to be made.
Assessment
13. I have had regard to the documentation presented and am satisfied that there has been a procedural irregularity in that the Judge reached his decision without giving the appellants a fair opportunity to deal with issues not put to them and made findings about their international movements which they would have been able to show were incorrect on the basis of the letter from the embassy.
14. In the circumstances, I set aside the whole of the determination.
15. The parties agreed that there would have to be a complete re hearing.
16. I have considered the Senior President's Directions regarding the remittal of cases to the First-tier Tribunal. I am satisfied that the effect of the error has been to deprive the appellants before the First-tier Tribunal of a fair hearing or other opportunity for their case to be properly presented to and considered by the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside.
I remit the case to the First-tier Tribunal (Hatton Cross) for a fresh decision to be made. Instructions to the administration for remitted cases have been prepared.
An agreed hearing date is yet to be fixed.
A Spanish (Latin American) interpreter is required. There will be three witnesses with a time estimate of two and a half hours. The appeal can be heard by any Judge apart from the First-tier Tribunal Judge whose decision was appealed against.
No anonymity direction is made.

Signed Date 20 January 2017

Deputy Upper Tribunal Judge C R Mailer