Upper Tribunal (Immigration and asylum chamber), 2018-01-19, IA/35108/2015
| Jurisdiction | UK Non-devolved |
| Date | 19 January 2018 |
| Published date | 07 February 2018 |
| Hearing Date | 06 December 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/35108/2015 |
Appeal Number: ia/35108/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/35108/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 6th December 2017 |
On 19th January 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE GRIMES
Between
mr Hussain Fida
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Maqsood instructed by Lamptons Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer
DECISION AND REASONS
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The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision of the Secretary of State of 8th December 2015 refusing his application for a residence card as confirmation of a right to reside in the UK as the unmarried partner of an EEA national. First-tier Tribunal Judge Khawar dismissed the Appellant’s appeal in a decision promulgated on 22nd February 2017.
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The Appellant appealed against that decision putting forward two grounds. The first ground is that the First-tier Tribunal erred in determining the appeal as he had no jurisdiction to do so following the decision of the Upper Tribunal in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC). It was agreed by Mr Maqsood and Mr Richards at the hearing that this Ground of Appeal fell away in light of the decision of the Court of Appeal in Khan v Secretary of State [2017] EWCA Civ 1755.
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The second Ground of Appeal remained live, it is contended in that ground that there was a procedural error on the part of the Tribunal. The hearing was listed for 13th February 2017. It is contended that the Appellant's solicitors faxed a letter to the Tribunal on 10th February 2017 indicating that the Appellant had instructed the solicitors to withdraw his appeal listed for 13th February 2017. In those circumstances it was submitted that there was a procedural error in proceeding with the appeal despite receipt of this letter.
Error of Law
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Mr Maqsood outlined the chronology to this appeal. The Secretary of State’s reasons for refusal letter was dated 8th December 2015 and the appeal was lodged on 16th December 2015. He highlighted that the Upper Tribunal decision in the case of Sala was promulgated in September 2016 and that case determined that there was no right of appeal available to the extent of family members of EEA nationals. He pointed out that on 25th November 2016 the 2016 amendments to the EEA Regulations came into effect. In his submission it was in response to that change of the law that the Appellant decided that it was appropriate to withdraw the outstanding appeal on the basis of the decision in Sala. Notice of an application to withdraw was submitted on 10th February 2017. Mr Maqsood accepted that this reason is not put forward in the letter purporting to withdraw the appeal. However he said that his instructions were that the only reason for withdrawing the appeal was because of the decision in Sala.
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Mr Maqsood pointed out that it is now apparent that the First-tier Tribunal Judge did not see the fax of 10th February 2017 because at paragraphs 7 and 8 the judge considered whether it was appropriate to determine the appeal in the absence of the Appellant. The judge noted that no communication had been received from the representatives and there was no attendance by the Appellant and no explanation for his absence. He further pointed out that at paragraph 19 the judge took into account the absence of the Appellant and the Sponsor at the hearing before concluding that any evidence submitted had not been subjected to testing and therefore carried little evidential weight. The judge’s decision was promulgated on 22nd February 2017.
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Mr Maqsood highlighted that on 6th March 2017 an application was made to the First-tier Tribunal for permission to appeal on the grounds of the decision in Sala and on the basis of the fact that the application to withdraw was not taken into account. On 7th September 2017 permission to appeal was granted on the basis of the decision in Sala as well as the purported withdrawal. He highlighted that the decision in Khan v Secretary of State was issued on 9th November 2017 and that decision the Court of Appeal confirmed that extended family members do in fact have a right of appeal.
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Mr Maqsood formulated the issue to be determined as to whether there was a good reason for the Appellant’s absence from the hearing in the First-tier Tribunal. He submitted that there was a good reason as the Appellant and the Sponsor chose not to attend as they were advised and believed that there was no point in attending based on the jurisdictional issue determined by the Upper Tribunal in the decision in Sala. In his submission, given subsequent events, there was a good reason not to attend but one that would now require the decision to be set aside. He also noted that under Rule 17(3) of the First-tier Tribunal Procedure Rules the Tribunal must notify each party that a withdrawal has taken effect and in the absence of that notice there was no effective withdrawal in this case.
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Mr Richards submitted that there was no procedural error in this case as there was no reason given in the withdrawal request and, if they had not received a withdrawal notice, the Appellant and Sponsor should have attended the hearing.
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In my view there is a straightforward interpretation of the procedural matters in this case.
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I have seen a copy of the fax dated 10th February 2017. It is not in dispute that this was received by the Tribunal. That fax contains a letter from the Appellant’s solicitors indicating that the Appellant had instructed that the appeal be withdrawn and asking for confirmation to this effect....
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