Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Pa/10781/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 February 2017
On 23 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Mr jeyatheepan punniyamoorthy
(no ANONYMITY DIRECTION MADE)
Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Nathan, counsel instructed by Kanaga Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Sri Lanka, born on 25 July 1986. He claimed asylum on 18 March 2016, which was refused by the Respondent in a decision dated 16 September 2016. His appeal came before Judge of the First tier Tribunal Lucas for hearing on 7 November 2016. In a decision and reasons promulgated on 24 November 2016, the Judge allowed the appeal on the basis that the claim should be reconsidered by the Respondent, in particular in relation to the Contents of Bundle C, which contained medical and psychiatric evidence and evidence of the Appellant’s sur place political activities in the UK.

2. An application for permission to appeal was made on behalf of the Appellant on the basis that the Tribunal does not have power to simply remit the appeal to the Respondent but can only do so when it is not in accordance with the law or an exercise of discretion ought to have been exercised differently and that this amounted to a procedural irregularity. Costs were also requested due to the wasted hearing.

3. Permission to appeal to the Upper Tribunal was granted by First tier Tribunal Judge Parkes in a decision dated 4 January 2017 on the basis that the only course of action is to grant permission and for the Upper Tribunal to remit the appeal to the First tier Tribunal for the hearing that should have taken place; the grounds of appeal are clearly arguable.

4. At the hearing before me, Mr Kotas agreed that the appeal should be remitted back to the First tier Tribunal. The issue in dispute between the parties was one of costs. Mr Nathan submitted strongly that the Appellant was entitled to cover the costs of the hearing before the Upper Tribunal in that, whilst it was accepted that the hearing before the First tier Tribunal was not the fault of the Secretary of State, her Rule 24 response was unreasonable and a consequence it had been necessary to have a hearing that need not have happened. He asked that I apply the powers of the Upper Tribunal at rule 10(3)(d) of the Upper Tribunal Procedure Rules and that the Appellant ought to be entitled to recover his costs of attending the hearing. He submitted that it was an appropriate case for an ex gratia payment to be made.

5. Mr Kotas strongly resisted the application for costs, given that it was quite clear from the Rule 24 response that the Respondent agreed that the matter should be remitted and at no point did the Appellant’s solicitors seek to clarify the position with the Respondent; he had tried to telephone the Appellant’s solicitors to clarify their position but was unable to get hold of anyone. He submitted that the application manifestly fails to reach the Cancino threshold and that no costs order should be made.

Decision

6. There is no dispute between the parties that First tier Tribunal Judge Lucas erred materially in law in allowing the appeal to the extent of remitting it to the Respondent for reconsideration in light of the evidence contained in Bundle C submitted on behalf of the Appellant. Section 86(3)(a) of the Nationality, Immigration & Asylum Act 2002 was abolished by way of paragraph 36(c) of Schedule 9 to the Immigration Act 2014 on 20.10.14 consequently there was no jurisdiction for the First tier Tribunal Judge to allow the appeal on the basis that is was not in accordance with the law and to remit it to the Respondent for reconsideration.

7. I remit the appeal to the First tier Tribunal for a de novo hearing before any Judge other than First tier Tribunal Judge Lucas. Whilst it is the Respondent’s position that the appeal be remitted back to Judge Lucas, given the lapse in time of over 4 months since the hearing before the First tier Tribunal and the absence from the file of any substantive record of proceeding, I do not consider that Judge Lucas would now be in a better position than any other Judge of the First tier Tribunal to hear the appeal. Given that there have been two hearings to date which have not progressed the Appellant’s case, I direct that, so far as it possible, the listing of the hearing at Taylor House is arranged in conjunction with clerks for Mr Nathan on 020 7430 1221.

8. In respect of the matter of costs, as the Rule 24 response from the Respondent makes clear, Part C of the Appellant’s bundle was served only on the morning of the hearing before the First tier Tribunal, in breach of standard directions and thus neither the Judge nor the Presenting Office had the opportunity to consider this evidence prior to the hearing. Part C comprises 83 pages of evidence specific to the Appellant. The Presenting Officer did not seek an adjournment or objected to late service of the bundle and thus the appeal proceeded. In these circumstances, and given that Mr Nathan accepted that the Respondent was not at fault I do not consider it appropriate to make any further observations about costs at this stage.

9. In respect of the hearing before the Upper Tribunal, rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended, provides inter alia as follows:

"10.—(1) The Upper Tribunal may not make an order in respect of costs (or, in Scotland, expenses) in proceedings [transferred or referred by, or on appeal from,] another tribunal except—

(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except—

(c) under section 29(4) of the 2007 Act (wasted costs) [and costs incurred in applying for such costs];

(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings."

10. I have had regard to the Presidential decision in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) in particular [27] and I find that this is not the kind of clear case that would merit a wasted costs order. The Respondent did lodge a rule 24 response in a timely manner in accordance with the directions, in which she indicated that the appeal should be remitted back to the First tier Tribunal. The point of difference between the parties was whether or not the appeal should be remitted back to Judge Lucas. Whilst I have declined to acceded to that proposed course of action, I do not consider that the Respondent acted unreasonably in her conduct. Thus this is not an appropriate case in which to make a costs order pursuant to rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

11. Having found a material error of law in the decision of First tier Tribunal Lucas, I remit the appeal to the First tier Tribunal for a hearing de novo before any other Judge.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

20 March 2017