Sayed Hazar Ali v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 25 May 2016 |
| Neutral Citation | [2016] EWCA Civ 910 |
| Docket Number | C5/2011/2948 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2016 |
[2016] EWCA Civ 910
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Simon
C5/2011/2948
Mr M Biggs appeared on behalf of the Applicant
Ms N Barnes appeared on behalf of the Respondent
This is an application dated 14 January 2016 made under CPR Part 52.17 to reopen an appeal which was struck out by Deputy Master Meacher on 25 November 2014.
The Applicant is a citizen of Bangladesh who entered the United Kingdom in April 2010 with leave to enter and remain as a Tier 4 (General) student. That leave was valid until 6 March 2011. On 5 March he applied for further leave to remain on the same basis. The application was refused in a decision letter of 29 March on the basis that the Applicant had not provided bank statements covering the full operative period required and therefore had not shown that he had the requisite funds for his maintenance.
He brought an in country right of appeal which was successful before the First-tier Tribunal. However, the Secretary of State appealed to the Upper Tribunal. The appeal was allowed and a determination made on 27 September 2011 dismissing the Applicant's appeal against the Secretary of State's decision. The basis of the Upper Tribunal's decision was that the First-tier Tribunal had made an error of law in taking into account material which had not been placed before the Secretary of State.
The Applicant sought permission to appeal on two grounds. On 13 January 2012 Sullivan LJ gave leave on one of those grounds; whether fairness required the Secretary of State to give an applicant for further leave an opportunity to supply missing documents.
The appeal was stayed pending the Court of Appeal's decision in Mahbub Alam. On 13 July 2012 the Court of Appeal handed down its decision in that case; [2012] EWCA Civ 960. The case decided that the Secretary of State was not required to give an applicant an opportunity to provide mandatory documents which had not been provided with the application form. The decision was subsequently upheld in the Supreme Court in Patel, Alam and Anwar [2013] UKSC 72 in a judgment handed down on 20 November 2013.
Following this, the appeal in the present case was listed to float in a two day period; 12 and 13 November 2014. Perhaps in the light of the developments in the law, at the end of October 2014 the Applicant indicated to the Court of Appeal office that he wished to withdraw his appeal. In paragraph 16 of his witness statement in support of the present application he says:
"I was wrongfully advised by an immigration practitioner that I should abandon the appeal and apply for leave to remain as a fresh Tier 4 applicant."
In any event, on 4 November he was asked by the Court of Appeal office to file a completed "request for dismissal" notice. The hearing date was vacated. In fact, no request for dismissal notice was received within the deadline indicated and the matter was placed in the dismissal list. The Applicant was notified that if no request for dismissal forms...
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