Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04873/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 September 2016
On 16 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Entry Clearance Officer
Appellant
and

OLANREWAJO SUNDAY TAIWO
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: No representation

DECISION AND REASONS
1. This is an appeal by the Entry Clearance Officer (hereafter the Respondent, as before the First-tier Tribunal) against the decision of First-tier Tribunal Judge Lagunju (the judge), promulgated on 29 January 2016, in which he allowed the appeal of Mr Taiwo (hereafter the Appellant) under the Immigration Rules.
2. That appeal to the First-tier Tribunal had been against the Respondent's decision of 11 February 2015, cancelling the Appellant's existing leave and then in turn refusing leave to enter the United Kingdom. This decision was based on two grounds. First, it was said that the Appellant had made false representations and/or had failed to disclose material facts for the purposes of obtaining his pre-existing leave. Second, it was said that there had been a change of circumstances in the Appellant's case since the original grant of leave such that that leave should be cancelled.
3. The relevant legal provisions relied upon were paragraph 2A(8) of the Immigration Act 1971 and paragraph 321A(1) of the Immigration Rules. The Appellant was subsequently removed to Nigeria, where as far as I can tell he has resided ever since. Nonetheless he appealed against the Respondent's decision. That appeal was initially struck out due to the non-payment of the requisite fee. However that fee was subsequently paid, and by a notice issued on 9 July 2015 the Appellant's appeal was reinstated. The Appellant, having no legal representatives or Sponsor in the United Kingdom, sought to have his appeal decided on the papers alone and as far as I can see the Respondent did not object to this course of action.
4. So it was that on 11 December 2015 the judge considered the appeal without an oral hearing.
The judge's decision
5. At paragraph 6 of his decision the judge states:
"I have been provided with a bundle from the Respondent containing the notice of appeal form and grounds of appeal, the notice of decision, the Appellant's passport photocopies, invitation letter and various other documents relied upon. I have carefully considered all the documents provided even if not specifically referred to in the decision."
6. In terms of his findings, the judge concludes that the Appellant did not employ false representations nor did he fail to disclose material facts in respect of the initial grant of leave made on 20 October 2014 (see paragraphs 8 to 13). In respect of the alleged change of circumstances since leave was initially granted the judge concludes that there were no such changes of circumstances such as to justify the cancellation of the existing leave. He makes reference to the guidance provided by the Respondent in respect of the purposes for which business people might enter the United Kingdom and concludes at paragraph 17 that the Appellant had not suggested he required entry for any personal matters such as a family visit or for tourist reasons. The judge concludes that the reasons that had been provided all related to business. As a result of this the appeal was duly allowed.
The grounds of appeal and grant of permission
7. The grounds of appeal are fairly lengthy but in essence rely throughout on what the Appellant is alleged to have said in the course of an interview with an Immigration Officer at Terminal 4 Heathrow Airport on or soon after 11 February 2015. This is said to have been included at Appendix D of the Respondent's bundle. Specific answers from that record of interview are cited throughout the grounds and it is said that the judge had failed to have any or any adequate regard to the interview evidence when reaching his findings of fact.
8. In granting permission to appeal on 18 July 2016 First-tier Tribunal Judge Simpson observes that in her view the record of interview was not in fact provided to the First-tier Tribunal by the Respondent. Judge Simpson goes on to state that it appeared to her that the appeal had been dealt with in the absence of any documentation from the Respondent and she refers back to the fact that the appeal was initially struck out for want of payment of a fee and that as far as she could see there was no evidence on file to suggest that a Respondent's bundle had ever been requested. Judge Simpson was of the view that in light of this it was arguable that the judge should have made enquiries as to the whereabouts of a Respondent's bundle before proceeding to decide the appeal.
The hearing before me
9. For obvious reasons there was no appearance by the Appellant before me and he remains legally unrepresented.
10. I have to say that this case is to an extent somewhat confusing. The core question is whether or not that record of interview was in fact before the judge when he made his decision on the papers. It is correct that the appeal was initially struck out but, as I have mentioned already, that appeal was subsequently reinstated. Having looked at the Tribunal's file it is apparent that following this reinstatement, notices (IA10, IA12 and IA35) dated 27 August 2015 and 8 September 2015 were in fact sent out to the Respondent requesting the production of a bundle for the purposes of the pending appeal. This contradicts the views of Judge Simpson in granting permission. Having regard to the evidence on file I find that Judge Simpson was wrong in her conclusion that no bundle had been requested.
11. There is I should say no Respondent's bundle on my file which is somewhat odd. This is so because not only did Mr Kotas have a complete Respondent's bundle on his file (a copy of which has now been made and is on the Tribunal's file) but also that the judge himself specifically refers at paragraph 6 of his decision to a Respondent's bundle containing the various documents set out therein. Doing the best I can I conclude that there was in fact a Respondent's bundle before the judge at the time he made his decision on this appeal. I find that the bundle contained a detailed explanatory statement and, importantly, the record of interview. As is clear from that explanatory statement the answers given at interview were material to the issues of whether or not the Appellant's leave fell to be cancelled as a result of false representations and/or a failure to disclose material facts and/or a change of circumstances.
12. Turning back to the judge's decision I find that there is no express reference to the record of interview whatsoever. Furthermore, I see no implicit reference to the material evidence set out in that record of interview. In my view it is inescapable that the judge for some reason has overlooked the interview evidence when assessing the evidence and reaching his findings in the Appellant's case. This being so, I conclude that the judge has committed a material error of law in failing to have regard to relevant evidence that was in fact before him. Having looked at the interview evidence for myself I cannot be satisfied that the judge's decision on the appeal would have been the same even if he had considered the interview record in detail. Therefore the error was material and the judge's decision must be set aside.
Disposal
13. I considered whether this matter could be retained in the Upper Tribunal for a re-make decision. However I have decided to remit this case to the First-tier Tribunal having regard to paragraph 7 of the relevant Practice Statement.
14. Although I have had no further evidence from the Appellant, given the nature of the issues in this case it seems to me important and in the interests of justice to allow him an opportunity to be provided with a copy of the Respondent's bundle, to be able to respond to all of the issues, and for a First-tier Tribunal Judge to consider properly all of the evidence in this case.
15. The remitted appeal shall be decided without an oral hearing.
16. I would note that before me Mr Kotas confirmed that he was not pursuing any allegation of dishonesty on the Appellant's part. Having regard to this, the fact that paragraph 321(A) refers to false representations and/or a failure to disclose material facts, in order to obtain the leave (i.e. that leave granted on 20 October 2014) and with regards to paragraphs 8 to 13 of the judge's decision, I conclude that the issue of paragraph 321(A) has been resolved in the Appellant's favour and is no longer live.
17. Therefore, on deciding the appeal on remittal, the sole issue is whether or not at the time the Appellant arrived at Terminal 4, Heathrow Airport, and when the Respondent's decision was subsequently made, there had indeed been such a change of circumstances since his leave was first granted that cancellation of his leave was justified. In addressing this issue the First-tier Tribunal will of course have regard to all the evidence in the Respondent's bundle and any evidence subsequently adduced by the Appellant. I will issue relevant directions below.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal for a decision without an oral hearing.
Directions to the parties:
1. This appeal is remitted to the First-tier Tribunal. The scope of the new decision on remittal is as set out in my error of law decision;
2. The Respondent is to serve a copy of the appeal bundle on the Appellant no later than 21 days from the date my decision is promulgated;
3. The Appellant is to send any evidence he wishes to rely on to the Respondent and First-tier Tribunal no later than 21 days after he receives the Respondent's appeal bundle;
4. Both parties are to comply with any further directions issued by the First-tier Tribunal itself.
Directions to Administration
1. This appeal is remitted to the First-tier Tribunal;
2. The file shall be placed before a First-tier Tribunal Judge (other than Judge Lagunju) at any appropriate hearing centre for a decision on the papers alone, not before 18 November 2016.
No anonymity direction is made.

Signed Date: 16 September 2016
Deputy Upper Tribunal Judge Norton-Taylor