Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00047/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 May 2019
On 21 June 2019

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Kamran KHAN
(anonymity order not made)
Respondent

Representation:
For the Appellant: The Appellant did not appear and was not represented
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing on human rights grounds but dismissing on humanitarian protection and asylum grounds an appeal by the respondent, hereinafter "the claimant" against the decision of the Secretary of State refusing him leave on those grounds.
2. There is no need for an order restraining the publication of the respondent's identity. There has been no challenge by the respondent to the decision to dismiss the appeal on asylum grounds.
3. I have to say that the only way of making any sense of the decision of the First-tier Tribunal is to assume that the decision to allow the appeal on human rights grounds was a mistake and was an error that ought to have been spotted by the judge but was not. I say this because there is nothing that I can see in the Decision and Reasons which gave any reason to think that the appeal was going to be allowed.
4. This appeal has been before the Upper Tribunal on an earlier occasion when a Deputy Judge of the Upper Tribunal found that the First-tier Tribunal had erred in law, set aside the decision of the First-tier Tribunal and then dismissed the appeal on asylum, humanitarian protection and human rights grounds.
5. The claimant asked for permission to appeal to the Court of Appeal and the application was placed before me. I noted that it was said that the Deputy Judge misled the representative by indicating that there was no need to trouble him when in fact the judge had decided to allow the Secretary of State's appeal. The claimant's representative was thus deprived of any opportunity of making further submissions by reason of the Deputy Judge indicating in the time-honoured way that he had decided the appeal in the claimant's favour.
6. I thought that there had been a procedural irregularity by the Upper Tribunal. I will repeat here what I said in my decision of 7 February 2019. I said:
"I am minded to preserve the Deputy Judge's decision to set aside the decision of the First-tier Tribunal but to set aside the rest of the decision on the grounds that there was a procedural irregularity within Rule 43(2)(d) and to reconstitute the hearing for submissions on the proper disposal of the appeal. It is by no means obvious to me that there should be a further hearing. KK did not seek to appeal the decision to dismiss the appeal on certain grounds and did not apply in accordance with Rule 15(2A) or at all, to serve further evidence to support the appeal but, subject to argument, it seems that KK was wrongfully deprived of the chance to make representations on the proper progress of the appeal."
7. I then suggested that unless there were representations to the contrary, I would set aside the decision of the Upper Tribunal and that is what I did.
8. There is no appearance from the claimant today. He clearly knows about the case because his solicitors have contacted the Tribunal to say they are no longer acting because they are without instructions and so would not attend at "tomorrows hearing dated 23 May 2019". They could only do that because they had been served with notice of hearing and service on representatives is good service.
9. Further the claimant by letter had asked for the hearing on 23 May 2019 to be adjourned. The application was refused on 16 May 2019 by Upper Tribunal Judge O'Connor. The claimant had asked to adjourn for medical reasons but had said no more and in particular had given no indication of the nature of the medical condition or why it prevented his attending the hearing or indeed at that point why he needed to attend at all because he was represented.
10. The claimant knows about the hearing; he knows the case that he had to deal with and, given the history, it is not entirely surprising that he has not come with any points of merit.
11. This is a case where the appeal was allowed wrongly by the First-tier Tribunal on the basis of a simple mistake. The Secretary of State appealed, Regrettably the claimant was not treated entirely fairly when he came before the Upper Tribunal and that decision of the Upper Tribunal was set aside.
12. I now have to determine the Secretary of State's appeal but I have no representation or arguments from the claimant even though the claimant had been told particularly clearly told what might happen.
13. In the circumstances I follow Ms Everett's submissions. The Secretary of State's appeal is allowed and I set aside the decision of the First-tier Tribunal, or what of it remains, and I substitute a decision dismissing the appeal on all grounds.
Notice of Decision
14. The Secretary of State's appeal is allowed. I substitute a decision dismissing on all grounds the claimant's appeal against the Secretary of State's decision.

Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 19 June 2019