Upper Tribunal (Immigration and asylum chamber), 2020-07-09, [2020] UKUT 249 (IAC) (Ali (permission decisions: errors; slip rule))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Blundell |
| Status | Reported |
| Date | 09 July 2020 |
| Published date | 14 August 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | permission decisions: errors; slip rule |
| Hearing Date | 17 June 2020 |
| Appeal Number | [2020] UKUT 249 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Ali (permission decisions: errors; slip rule) [2020] UKUT 00249 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype for Business |
Decision & Reasons Promulgated |
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On 17 June 2020 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
BASHARAT ALI
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Maqsood, Counsel instructed by Archbold Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer
(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows.
(2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise. Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.
(3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake.
(4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant. This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it. Otherwise, the points made above in respect of the rule 24 response apply also in this situation.
(5) Where an Upper Tribunal Judge refuses permission to appeal, when they clearly meant to grant it, the decision is an “excluded decision”: section 13(8)(c) of the 2007 Act and cannot be appealed to the appropriate appellate court. A party should, therefore, apply for the Upper Tribunal to exercise its power of correction under rule 42.
(6) The process just described applies only to those cases in which there is a clear and obvious contradiction between the intention of the judge who decided the application for permission and the order made on that application. In any other case, parties should proceed on the basis that the decision is that recorded in the relevant document and the Tribunal is likely to regard it as productive of delay and a waste of its resources to engage in an inter partes process in order to determine whether the slip rule should be applied.
DECISION AND REASONS
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Both members have substantially contributed to this decision.
A. The appellant
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The appellant, a citizen of Pakistan, came to the United Kingdom as a student in 2011 with leave to remain in that capacity until 20 November 2012. A subsequent application for extension was granted until 6 April 2014.
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On 28 March 2014, the appellant sought further leave to remain as a Tier 4 (General) Student Migrant. He sought leave to remain so that he could pursue a course of studies at Stanfords College, which was at that time based on 1393A London Road, Norbury. The appellant gave the college’s address as his correspondence address in his application for further leave. The appellant continued studying at the college whilst his application was pending.
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In August 2014, the appellant discovered that Stanfords College had lost its sponsor licence. Anticipating that the respondent would in due course make contact about this, the appellant wrote to her offices in Sheffield on 8 September 2014, notifying her that she should not write to him at the college’s address, but at his home address.
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The respondent wrote to the appellant as he had expected. On 6 February 2015, she wrote to state that Stanfords College’s sponsor licence had been revoked and that he had sixty days within which to secure an alternative Tier 4 sponsor. Unfortunately, that letter was sent to 1393A London Road, and not to the appellant’s residential address in East London. The appellant did not receive the letter and took no action. On 27 April 2015, therefore, the respondent refused the application, holding that the sponsor identified by the applicant had lost its licence and that he did not hold a valid Confirmation of Acceptance for Studies (“CAS”). That refusal letter, a copy of which is before us, was also sent to Stanfords College.
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On 13 May 2015, the appellant issued judicial review proceedings in the Upper Tribunal seeking, as we understand it, a decision on his March 2014 application. It was as a result of those proceedings that the appellant came to know that letters had been sent to his college rather than his home address. The appellant duly appealed against the decision of 27 April 2015 and the judicial review claim was settled by consent on 8 July 2015.
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The appellant’s appeal to the First-tier Tribunal was heard on 10 November 2015. The only submission made was that the respondent had acted unlawfully in sending the ‘sixty day letter’ and the subsequent refusal letter to Stanfords College, given that he had written to the respondent to notify her of the change in his correspondence address. Unfortunately, the judge in the First-tier Tribunal overlooked the letter and the proof that it had been posted to the respondent’s address in Sheffield by recorded delivery. She held, therefore, that it was the appellant who had been at fault in failing to notify the Home Office of his change of address.
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The appellant appealed to the Upper Tribunal, relying on the failure of the judge in the FtT to consider his correspondence with the respondent in September 2014. On 14 June 2016, it was held by Deputy Upper Tribunal Judge Monson that the First-tier Tribunal had erred in overlooking that evidence; that the appellant had corresponded with the Home Office as claimed; and that the only fair course, in the circumstances, was for the appellant to be issued with a further ‘sixty day letter’ to enable him to find another sponsor. The respondent wrote to the appellant very shortly thereafter to acknowledge the decision that had been made in the appeal and to state that it would be implemented by a department in Sheffield.
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For reasons which are unclear, however, nearly two years passed without any further action on the part of the respondent. On 15 May 2018, she finally sent a ‘sixty day letter’, informing the appellant that consideration of his application would be suspended for that length of time so that he had an opportunity to obtain a new sponsor. He was told that he would have to secure a new sponsor and make an application for leave to remain by 13 July 2018; that no further extensions would be permitted; and that a decision would be reached after sixty days had passed.
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On 8 June 2018, the appellant’s solicitors wrote to the respondent. They confirmed receipt of the letter of 15 May 2018. They set out the history of the case, including the error which had caused Judge Monson to decide as he did, and the lengthy delay following his decision. It was submitted that the appellant should receive a period of discretionary leave so as to give him a proper opportunity to regularise his status, for the following reasons:
“It would be extremely unfair and harsh to hold the CAS for a period of 2 years without providing any cogent reasons to this effect. This has unreasonably caused our client into a stage of panic and anxiety. He is no longer able to obtain admission in any college with the 60 days letter due to the huge gap. To correct the matter it would be only fair that our client is granted with discretionary leave at least and to provide him with sufficient opportunity in order for him to carry on with his studies in the future.”
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On 20 June 2018, the respondent replied. She acknowledged receipt of the letter from the appellant’s solicitors before stating that the appellant’s sixty day letter had been sent to his previous address and signed for on 18 May 2018. She enclosed ‘a new 60 days letter’, in similar terms to the first, and stated that no further extension would be...
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