Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal No’s: OA/00360/2015
OA/00359/2015
OA/00361/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 7 March and 5 April 2017
on 6 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

F NAZREEN + 2 children
Appellants
and

ENTRY CLEARANCE OFFICER, Islamabad
Respondent

For the Appellants: on 7 March, no appearance;
on 5 April, Mr K Forrest, Advocate, instructed by Livingstone Brown, Solicitors (sponsor also present)

For the Respondent: on 7 March, no appearance;
on 5 April, Mr M Matthews, Senior Presenting Officer

DETERMINATION AND REASONS
1. The appellants appeal against a determination by First-tier Tribunal Judge Mozolowski, dismissing their appeals against refusal of entry clearance.
2. The hearing in the FtT was on 1 September 2016. The judge at paragraph 7 says that she declined to adjourn for production of further documentation, but allowed the sponsor “a few working days” to lodge a copy lease or anything further which had been before the respondent but was not in the bundles before the FtT. She then says that as nothing further had been lodged “three weeks from the date of the hearing” she assumed there were no documents to be lodged. Her determination is dated 22 and was issued on 23 September 2016.
3. The grounds of appeal to the UT state as follows:
“… the sponsor submitted 2 copies of bundle of documents including tenancy agreement on 6 September one for the judge and the other for the Home Office representative and requested the receptionist to produce the documents to the judge … Receptionist signed a receipt which is enclosed herewith.
… due to negligence and irresponsibility of court receptionist and unavailability of these documents the judge assumed that the sponsor could not produce the documents [and so] made the decision just from the ECO’s decision letter.”
4. There is produced with the grounds of appeal a copy Tribunals Service form of receipt for case bundles, on which is handwritten:
“OA/0360/2015 + Home Office bundle [signature] 6/9/16”.
5. Permission was granted on the view that there might have been procedural unfairness, although through no fault of the judge:
“The nature and any effect the documents may have had … remains to be seen, but the appellant had an expectation that they would be considered, having been granted leave to produce the same”.
6. A hearing was fixed for 7 March 2017. Notice was issued to appellants at the last address which appears on tribunal records.
7. The respondent sought an adjournment, because the presenting officer due to appear was unavailable at short notice, due to illness.
8. There was no appearance by the sponsor or otherwise on behalf of the appellants, and no communication had been received.
9. Although the tribunal is under no obligation to undertake enquiries, a clerk of the tribunal made a telephone call to the sponsor. I understand that he advised that he was unaware of the hearing date, having changed address (although no notice of change of address was on the file) and that legal representatives had been instructed (although no notice from any representatives was on the file).
10. In all the circumstances, the hearing was adjourned and a note issued as above.
11. At the resumed hearing, Mr Forrest (who had only recently been instructed, and who bears no responsibility for the state of the case to date) acknowledged that he was rather hampered by the state of the evidence and by the limited extent of the grounds. He sought to advance the case under 3 headings: (1) error by the ECO in applying the financial requirements of the rules; (2) error over the issue of accommodation, the adequacy of which had been established by evidence from the local authority, although admittedly dated after the date of application and decision; and (3) article 8 of the ECHR, the unfortunate underlying circumstances, protracted history of the case and prolonged separation of family members amounting to disproportionate interference with family life, being of “a particularly pressing nature” such as envisaged in SSHD v SS (Congo) & Others [2015] EWCA Civ 387 at ¶40.
12. Having heard also from the respondent, I reserved my decision.
13. The case has an unfortunate history, as there was a previous remit to the FtT, and as there was a procedural mishap [not necessarily negligence or irresponsibility; administrative accidents happen] in that documents supplied by the sponsor were never linked to the file. That might constructively amount to an error of law; but the difficulty in this case is that it cannot be shown to have been material, because with or without any missing documents there was no evidence before the FtT by which the appeals might have succeeded. I was advised that the sponsor went away from the hearing with the impression that all he had to do for the cases to be won was to supply the copy lease; but that was a highly over-optimistic expectation, with no legal basis.
14. The rules governing these cases, subject to very little if any exception, require necessary documentation to be submitted with applications to the ECO.
15. Appeals of this nature cannot succeed by reference to documentation produced in course of the appeals procedure, or by showing that the rules might be have been met at some date later than the date of the decision.
16. The FtT determination shows that the approach for the appellants was thoroughly muddled in these respects, and that shortcomings in the evidence were correctly identified by the ECO – see e.g. ¶18 of the determination.
17. It is inherent in the rules that some close relatives are unable to live together in the UK, due to inability to meet the requirements of the rules. There is nothing in this case by which the judge’s treatment of article 8 matters, in and out of the rules, might have been found to err in law, even if there had been a ground of appeal to that effect. Further, as Mr Matthews submitted, this case falls for consideration on the facts as at date of decision for article 8 purposes, not at today’s date.
18. There is nothing in the grounds or submissions, even on the most generous view, which yields any scope for setting aside the decision of the FtT or for reaching an outcome in favour of the appellants.
19. The determination of the FtT shall stand.

7 March 2017
Upper Tribunal Judge Macleman