Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03149/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th August 2016
On 17th August 2016

Before

upper tribunal Deputy judge ROBERTS

Between

[m g]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant a citizen of Turkey (born [ ] 1996) appeals with permission to the Upper Tribunal, against the decision of a First-tier Tribunal (Judge Parker) in which it dismissed the Appellant's appeal against the Respondent's decision to refuse his protection claim as a refugee, on account of his political opinion and ethnicity.
Background
2. The Appellant left Turkey some time between 16th and 20th September 2015 and travelled to Morocco. He remained there until 30th September 2015 before travelling to the UK. He was encountered at Gatwick Airport, with a Turkish ID card and promptly claimed asylum.
3. He was interviewed on 20th January 2016 about his asylum claim. On 8th March 2016 the Respondent refused it. The Appellant instructed representatives to appeal the refusal to the First-tier Tribunal.
4. On 22nd April 2016 the First-tier Tribunal made a decision on a preliminary issue and decided that the Appellant had lodged an incomplete Notice of Appeal because sections D, E and F of the Notice of Appeal were not completed. This constituted a failure to comply with the 2014 Procedure Rule and it entitled the FtT to consider whether to determine the appeal without a hearing.
5. Having decided that it would make the decision without a hearing, the FtT then went on to consider the merits of the Appellant's case and decided that the appeal must fail.
6. The Appellant sought permission to appeal that decision. Permission to appeal was initially refused by the FtT; but on a renewed application before the Upper Tribunal permission was granted in the following terms:
"1. It is arguable that if the solicitors successfully sent the grounds of appeal on 22 March 2016 and the completed form by 30 March 2016 the First-tier Tribunal (FTT) had all requisite information and the summary of the information available at [2] of the FTT decision is incorrect and the procedural history in this case is such that it is arguable that no rational Tribunal could be satisfied that it was appropriate to determine the appeal without a hearing. It is however difficult to ascertain what was available to the Tribunal from the file at the relevant time when the decision under appeal was made on 22 April 2016. It appears that only 18 pages were received and these did not include the grounds of appeal.
2. The appellant's solicitors shall provide a witness statement explaining what was sent to the Tribunal, when, with a paginated bundle of exhibits confirming the same, including a chronology, by 21 July 2016.
3. It is noted that the application has been received one day late. This is said to relate to difficulties with the e-fax system. This system clearly has flaws, which should be attended to urgently. However as the matter relates to a protection claim and there has been an explanation for the delay I am prepared to extend time and admit the application."
7. Thus the matter comes before me to decide whether the FtT's decision to dismiss the appeal on a preliminary issue contains an error of law requiring it to be set aside and the decision remade.
The Upper Tribunal Hearing
8. Mr Tarlow appeared on behalf of the Respondent, no-one attended on behalf of the Appellant. However prior to the hearing, there had been served on the Tribunal a bundle of documents under cover of Duncan Lewis Solicitors letter dated 15th July 2016. Those documents contained a witness statement of Emel Bostanci. In that statement Ms Bostanci indicates that she is the caseworker with charge of the Appellant's case. She outlines that the Appellant's protection claim was refused on 8th March 2016 and on 22nd March 2016 within the permitted timescale, she completed the Appellant's Notice of Appeal using the online PDF fillable form downloaded from the justice.gov.uk website. She then submitted the form together with the Appellant's Grounds of Appeal and the SSHD reasons for refusal letter. She received notification that the fax (35 pages) had been successfully transmitted at 1.29am.
9. She accepts that on 24th March 2016 she received a letter from the Tribunal advising that the appeal papers were received on 22nd March 2016 but that the appeal form was blank, was not signed and dated and did not include a fee. Accordingly she responded to the Tribunal's letter and it is correct to say that she was satisfied that proper Grounds of Appeal had been submitted on the Appellant's behalf.
10. Mr Tarlow having only just received sight of those documents at the hearing, fairly accepted that the Appellant's representatives had taken the appropriate steps to serve the Grounds of Appeal. He accepted that this was a matter which should be returned to the First-tier Tribunal on the basis that the Appellant had been deprived of the opportunity of having a fair hearing.
Consideration
11. I agree with the course outlined by Mr Tarlow. I am satisfied that the Appellant has always wished to exercise and pursue his right to have an oral hearing. I am satisfied that the Appellant has made a genuine effort to substantiate his claim and to follow his claim through to a full hearing.
12. Accordingly I set aside the FtT's decision in its entirety and direct that the matter be remitted to that Tribunal (not Judge Parker) for a full and substantive hearing.
Notice of Decision
The decision of the First-tier Tribunal dated 22nd April 2016 is hereby set aside for legal error. The matter will now be remitted to the First-tier Tribunal (not Judge Parker) for that Tribunal to remake the decision.
No anonymity direction is made.

Signed C E Roberts Date 16 August 2016

Upper Tribunal Deputy Judge Roberts