Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/01090/2015
OA/01092/2015
OA/01093/2015
OA/01095/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On 24th November 2016
On 5th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) Ranee [m]
(2) [h i]
(3) [s i]
(4) [e e]
(ANONYMITY DIRECTION not made)
Appellants
and

the Entry Clearance Officer, islamabad
Respondent

Representation:
For the Appellants: No legal representation
For the Respondent: Mr E Tufan (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge L Rahman promulgated on 21st June 2016, following a hearing at Taylor House on 28th April 2016. In the determination, the judge dismissed the appeals of the Appellants whereupon they subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are the spouse and children respectively of the Sponsor, Mr Ahsan Anees, who is settled in the UK, and in a decision dated 2nd December 2014, their application for entry clearance to join him was rejected by the Entry Clearance Officer in Islamabad, and subsequently upheld by the Entry Clearance Manager in a decision dated 1st April 2015. The basis of the refusal decisions were that the three children, namely, the second, third, and fourth Appellants, are from a previous marriage of the principal Appellant, the first Appellant herewith, and there was a lack of regular contact and communication between the Sponsor and the First Appellant such as would demonstrate there to be in existence a genuine and subsisting relationship.
The Judge's Findings
3. At the hearing before Judge Rahman on 28th April 2016, the Sponsor, Mr Ahsan Anees, did not attend the hearing and the respondent agreed by telephone for the appeal to proceed without further representation. The judge went on to look at the evidence, noting how the reason why the Sponsor had not visited the Appellants in Pakistan as often as he would have was because he was working hard to ensure that he would have funds to meet the minimum financial threshold requirement, but he was sending them remittances and he was currently "fully focused on his job and business to satisfy the income requirements and to support his family" (paragraph 15). He did travel to Pakistan in January 2015 and spent nearly two months there with his family (paragraph 16). The judge held that the first Appellant and the Sponsor had failed to adequately explain why there is only one visit for nearly six years after the claim of marriage in 2008 and upheld the decisions of the Respondent authorities.
Grounds of Application
4. The grounds of application state that there has been an error of a procedural nature in that the Sponsor did not receive any letter or date of the hearing and he had every intention to attend the hearing. He attended the hearing in Manchester with witnesses when this matter had been listed on the float list but was adjourned to London.
5. On 19th October 2016, permission to appeal was granted by the Tribunal and it was noted that on 17th February 2015 Judge Cameron found that there was no right of appeal in this case, and the notice was apparently served on the Appellants at a different address to the Sponsor's address, although on 28th April 2016 there was an appeal hearing and the judge made findings that there was no satisfactory explanation for the Sponsor's non-attendance. Given that the Sponsor did not have an opportunity to be heard, permission was granted.
6. In the Rule 24 response by the Respondent, it was considered that there was a procedural error of law in the circumstances.
This Hearing
7. At the hearing before me, there was a letter dated 22nd November 2016, two days prior to this hearing from the judicial liaison and file management team, pointing out that the Appellant had written to the Tribunal asking for the appeal to be withdrawn. However, this was under the misapprehension that the Respondent had conceded the appeal and accepted that the Appellants had the right to come to the UK. There had been a letter dated 21st October 2016 (which was received on 22nd November 2016 by the Tribunal) asking that the Appellants wish to withdraw the appeal. The judicial liaison and file management team pointed out, however, that the Rule 24 response dated 8th November 2016 did not indicate that the "appeal can be successful under PBS", but only conceded that there was a procedural error of law, and there was no concession that on remaking the appeal it should be allowed.
8. In fact, the last paragraph of the Respondent's Rule 24 response makes it clear that, "the Appellants cannot succeed in this application" and suggests a fresh application is made. The reason is that the Sponsor is now a British citizen and this means that the Appellants cannot apply under the PBS system. The judicial liaison and file management team were wrong to state in their letter of 22nd November 2016 that, "the Tribunal does not consent to the withdrawal and the hearing set for 24th November 2016 will proceed unless the Appellant confirms that she still wishes to withdraw in light of a correct understanding of the Respondent's position". It goes without saying that this is a very short decision by the Tribunal designed to protect the Appellants' interests in the light of the fact that they had been under a complete misapprehension about the response to this appeal by the Respondent authority.
9. At the hearing before me, Mr Tufan, appearing on behalf of the Respondent, stated that, plainly there was a procedural error in that if the Sponsor had not been sent notification of the hearing, he and his witnesses could not attend to give evidence, on the issue of whether there was a genuine and subsisting relationship between the parties, and the matter should be remitted back to the First-tier Tribunal, to be heard by a judge other than Judge L Rahman.
10. On the other hand, it remained equally true that the Appellants could not now succeed under the PBS because the Sponsor was a British citizen and it would be altogether better for the Appellants to make a fresh application. The Sponsor indicated that he was in no position to make a decision in this respect and to take a draconian step of withdrawing his appeal without legal advice on this matter and so he was content with the suggestion that an error of law finding be made by this Tribunal, on the basis that he had been prevented from giving evidence due to lack of notification, and that the matter be remitted back to the First-tier Tribunal to be heard by a judge other than Judge L Rahman. In the meantime he would seek advice from legal representatives as to what to do given that his status was now that of a full British citizen. He also pointed out that his address had changed so that he was now living at [Surrey] and that is where any future notifications should be sent.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be heard by a Judge other than Judge L Rahman. I give directions that any future notification of the appeal should be sent to the Appellants at the Sponsor's address of [Surrey].

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 4th January 2017