Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13751/2017

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decisions & Reasons Promulgated
On 13th December 2018

On 9th January 2019

Before

Upper Tribunal Judge Chalkley

Between

Rebaz Jamil Salih
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Wilkins of Counsel, instructed by Morgan Reiss Solicitors
For the Respondent: Mr McVeety, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Iraq who made application to the Secretary of State for recognition as a refugee. That application was refused and he subsequently appealed to the First-tier Tribunal. His appeal was heard by First-tier Tribunal Judge M Davies in Manchester on 23rd May, 2018. The judge refused the application, finding that the appellant could not discharge the burden of proof on him to show that were he to be returned to Iraq there was a serious possibility that he would be persecuted for a Convention reason.
2. Dissatisfied with that decision, the appellant made application to the First-tier Tribunal for permission to appeal. In a decision dated 18th October, 2018 First-tier Tribunal Judge Page said this:
"1. The appellant seeks permission to appeal, out of time, against a decision of the First-tier Tribunal (Judge Davies), who, in a decision promulgated on 5th June, 2018 dismissed the appellant's asylum appeal.
2. The Tribunal's decision was served on the appellant's solicitors and the appellant by first-class post on 5th June, 2018 together with a notice informing them that any application for permission to appeal must be received by the Tribunal no later than fourteen days after it was received. Allowing two days for it to have arrived the last date the Tribunal could have received the application in time was 20th June, 2018. This application was not received until 25th September, 2018. I do not accept the explanation given that neither the appellant or his solicitor received the decision when it was sent out. The solicitors say that the Home Office told the appellant on reporting that his appeal had been dismissed and this was the first the appellant knew. When the decision was sent out on 5th June, 2018 it was also sent to the Home Office. They obviously received it if they spoke to the appellant about the result of his appeal. This application is over three months out of time. There is no merit in the application to extend time and in any event the grounds of appeal amount to disagreement dressed up as legal argument with much unnecessary recital of case law that the Tribunal is already very familiar with. The judge's conclusion at paragraph 67 that the appellant's evidence was 'vague and wholly incredible' was properly open to the judge to reach on the evidence. If I had been able to extend the time limit I would have refused permission to appeal in any event."
The difficulty with that decision is that above the reasons for the decision, it says that the appeal is "granted". It seems perfectly clear to me when reading the body of the decision, that it was the intention of the judge to refuse to grant permission.
3. On receipt of that notice those representing the appellant should have contacted the Tribunal without further delay and sought clarification. They should have written to the Upper Tribunal and asked that the decision be shown to the Duty Judge in order that he or she could amend it under the slip rule and order that it be re-promulgated, giving rise to an opportunity for the appellant to apply to the Upper Tribunal for permission to appeal to the Upper Tribunal.
4. This morning Counsel has asked me to grant leave out of time. She told me that her instructing solicitors did ring the Upper Tribunal and spoke to an administrative officer who said that the application had been granted. I believe that it should have been blatantly obvious to those representing the appellant that the application had not been granted and they really should not have been surprised that an unqualified member of the Upper Tribunal administrative staff should tell them otherwise. At the very least they should have asked that the administrative officer speak to the Duty Judge and ring them back.
5. I do not know why there has been further delay on the part of the appellant; it appears that having spoken to an Upper Tribunal administrative officer, the appellant's solicitors did nothing. In the circumstances, I am not prepared to extend the time limit. There is no valid appeal before me.
6. Having given my decision ex tempore, my usher told me that Counsel had handed to her a skeleton argument with her Section 84 form. I advised Counsel that I was not prepared to accept a skeleton argument, when it could and should have been sent to the Upper Tribunal in time for it to be placed in the file for the judge to read in advance of the hearing. As it was, I had not had the opportunity of reading it. I am satisfied that Counsel was given every opportunity to tell me whatever she wanted to and the appellant was not disadvantaged by my not having has the skeleton argument to read when preparing the file.
Notice of Decision
There is no valid appeal before me. I decline to extend the time limit.

Richard Chalkley
A judge of the Upper Tribunal. Date: 19 December 2018