Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01747/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 February 2016
On 12 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Ms. GLORIBHELLE BESAS TORRES
(NO ANONYMITY ORDER MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

____________________________

ERROR OF LAW & REASONS
____________________________

Representation:
For the Appellant: no appearance
For the Respondent: Mr Tom Wilding, Home Office Presenting Officer

1. The Appellant is a national of the Philippines, born on 21 December 1995. On 21 October 2013, she applied for entry clearance as the dependent relative of her mother, Maggie Torres, who is present and settled in the United Kingdom and a British citizen. This application was refused with reference to paragraph 297(i)(e) on 19 December 2013 because the ECO was not satisfied that the Sponsor has had sole responsibility for her daughter's upbringing and with reference to paragraph 297(v) of the Rules as the Respondent was not satisfied that the maintenance requirements were met.

2. An appeal was lodged against this decision and the appeal came before Judge of the First-tier Tribunal Fletcher-Hill for hearing on 26 February 2015 when the Sponsor and her husband attended. That hearing was adjourned in order for them to provide documents including evidence of earnings for the Sponsor's husband and evidence of accommodation costs, bearing in mind that they no longer had the assistance of solicitors. The case was then re-listed to be re-heard on 15 April 2015 and notification was sent to the Sponsor on 28 March 2015. However, on 15 April 2015 there was no appearance by or on behalf of the Appellant and no explanation of the failure to attend by the Sponsor and her husband. No new additional documents had been submitted. First-tier Tribunal Judge Fletcher-Hill then proceeded to deal with the appeal on the papers, having heard submissions by the Respondent.

3. In a decision promulgated on 28 June 2015, he dismissed the appeal, both with reference to the Immigration Rules and Article 8 of ECHR, on the basis of an absence of evidence. An application for permission to appeal was made on 10 August 2015 by the Sponsor on the sole basis that she did not receive the notice of hearing and so did not have the opportunity to present proof that her daughter should have the right to be with her. Permission to appeal to the Upper Tribunal was granted on 18 January 2016 by First-tier Tribunal Judge Astle on the basis that he could not be satisfied that the notice of hearing reached the Sponsor and it was arguable there had been procedural unfairness.

4. On 5 February 2016, the Sponsor wrote to the Upper Tribunal stating that it appears that she not met the requirements of the immigration rule as she was unable to find the required evidence to support the case and wished to withdraw the appeal. On 15 February 2016, the Upper Tribunal responded, having sought advice from an Upper Tribunal Judge, to the effect that the Appellant had not authorized withdrawal of her appeal and that this needed to be done formally either by authorizing the Sponsor so to do or by writing a letter herself withdrawing the appeal. Consequently, the hearing would go ahead on 17 February 2016.

Hearing

5. At the hearing before me there was no appearance by the Sponsor or anyone instructed on behalf of the Appellant. Mr Wilding accepted that there had been apparent procedural unfairness but in the absence of the Sponsor and in light of the indication in her letter of 5 February 2016 there was little point in the matter going further.

Decision

6. I do not find that First tier Tribunal Judge Fletcher-Hill materially erred in law in that he took steps to check the address to which the hearing notice had been sent and to telephone the previous representatives and the Appellant by mobile on the morning of 15 April 2015 [11]-[14] refer. However, it is clear from the application for permission to appeal that the Sponsor was not aware of the hearing date and had wished to attend to support her daughter's appeal. Consequently, there has been procedural unfairness such as to justify overturning that decision cf. MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC).

7. The Sponsor has now indicated that she wishes to withdraw the appeal as she cannot meet the requirements of the Rules, however, as the letter from the Upper Tribunal of 15 February 2016 makes clear, it is only the Appellant who has the authority to withdraw her appeal. This is important given that the Appellant is now over 18 years of age and is no longer eligible to seek entry clearance as the dependent child of a person present and settled in the United Kingdom, were she to seek to make a fresh application for entry clearance.

8. In these circumstances and in light of MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC) at [26] I remit the appeal for a hearing de novo before the First Tier Tribunal in order to provide the Appellant with the opportunity to present her appeal via her mother or representatives in the United Kingdom. If the Appellant no longer wishes to pursue her appeal then she must either write to the First tier Tribunal at Hatton Cross stating this in terms or provide her mother with written authority to this effect, which can then be forwarded to the Tribunal.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

14 March 2016