Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09795/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd February 2017
On 03rd February 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

master haseeb sethi
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:
For the Appellant: Ms D Revill of Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Aujla promulgated on 8 August 2016, in which his appeal against the Respondent's decision to refuse him entry clearance to the United Kingdom under paragraph 297 of the Immigration Rules dated 15 June 2015 was dismissed.
2. The Appellant is a national of Pakistan, born on 29 September 1999 who sought to join his brother, Muhammad Usman Sethi (the "Sponsor") in the United Kingdom, as his dependent relative.
3. The Respondent refused the Appellant's application on the basis that there were no serious compelling circumstances that made his exclusion undesirable. This was because there was no information about his other family members in Pakistan or why the Appellant was unable to continue living with his uncle in Pakistan. The Pakistani court guardianship order was not accepted, nor was there sufficient evidence of contact with the Sponsor. It was not accepted that the refusal of entry clearance was in breach of Article 8 of the European Convention on Human Rights.
4. Judge Aujla dismissed the Appellant's appeal under the Immigration Rules and on human rights grounds. This was primarily because it was not accepted that there were serious compelling circumstances as the Appellant's claim to be living in overcrowded conditions was rejected, there were other family members in Pakistan to care for him and it would be in the Appellant's best interests to remain in his settled environment in Pakistan. It was not considered that there were any compelling circumstances to consider the application outside of the Immigration Rules on Article 8 grounds.
The Appeal
5. Judge Hollingworth granted permission to appeal on two grounds, first that the First-tier Tribunal erred in finding continuing emotional support, guidance and stable care in Pakistan for the Appellant which was arguably contrary to the evidence before him and insufficient reasons were given. Secondly, that unknown 'miscellaneous' documents were taken into account which was procedurally unfair to the Appellant.
6. At the appeal, both representatives confirmed that they did not know what the 'other miscellaneous documents in the Tribunal file' were that Judge Aujla stated in his decision that he had taken into account. Further, it was not clear from my file what these documents were. In the circumstances, it was impossible to know what precisely had been taken in to account and what bearing, if any, such documents may have had on the decision to dismiss the appeal or the reasons for it.
7. I indicated at the outset of the hearing that my preliminary view was that it was a material error of law for Judge Aujla to take into account miscellaneous documents which were not served on either party as it was procedurally unfair to do so. I heard no substantive submissions in response on behalf of the Respondent. I find that the hearing was procedurally unfair in that the appeal was determined by taking into account unknown miscellaneous documents which were not before either party. That was a material error of law. It was accepted by both parties that as such the decision of the First-tier Tribunal should be set aside and remitted for fresh determination. In the circumstances, it was unnecessary to go on to consider the alternative ground of appeal as the decision has to be set aside in any event.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.

Directions to the parties

1. This appeal is remitted to the First-tier Tribunal for complete rehearing.

2. Any further evidence relied upon shall be filed with the First-tier Tribunal and served upon the other party no later than 14 days prior to the hearing of the remitted appeals.

3. The Appellant is to file with the First-tier Tribunal and serve upon the Respondent no later than 14 days prior to the hearing of the remitted appeals a skeleton argument setting out relevant issues, with reference to evidence and case-law.

Directions to administration

1. The appeal is remitted and shall be heard at the Taylor House hearing centre on a date to be fixed by that centre.

2. The remitted appeal is to be listed before any Judge except Judge Aujla.

3. There is a time estimate of 2 hours for the hearing.

Signed Date 2nd February 2017

Upper Tribunal Judge Jackson