Upper Tribunal (Immigration and asylum chamber), 2020-09-21, HU/11073/2019
| Jurisdiction | UK Non-devolved |
| Date | 21 September 2020 |
| Published date | 05 October 2020 |
| Hearing Date | 16 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/11073/2019 |
Appeal Number: HU/11073/2019_P
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11073/2019_P
THE IMMIGRATION ACTS
|
Decided under Rule 34 without a hearing On 16 September 2020 |
Decision & Reasons Promulgated On 21 September 2020 |
Before:
UPPER TRIBUNAL JUDGE GILL
Between
Mr Bankole Ayodeji Osadiya
(ANONYMITY ORDER NOT MADE)
Appellant
And
The Secretary of State for the Home Department
Respondent
This is a decision on the papers without a hearing. Neither party made any submissions on the question whether it is appropriate for the Upper Tribunal to decide the Issues (as identified at para 5 below) without a hearing. The documents described at para 4 below were submitted. A face-to-face hearing or a remote hearing was not held for the reasons given at paras 6-18 below. The order made is set out at para 83 below. (Administrative Instruction No. 2 from the Senior President of Tribunals).
Representation (by written submissions):
For the appellant: Ms A Delbourgo, of Counsel, instructed by A.Vincent Solicitors Ltd.
For the respondent: Mr T Lindsay, Senior Presenting Officer.
DECISION
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The appellant, a national of Nigeria born on 17 June 1968, appeals against a decision of Judge of the First-tier Tribunal Rayner who, in a decision promulgated on 12 November 2019 following a hearing on 21 October 2019, dismissed his appeal on human rights grounds (Article 8) against a decision of the respondent of 14 June 2019 to refuse his application of 24 April 2019 for leave to remain on human right grounds (Article 8) as the partner of his wife, Mrs. Mercy Omojowho, a British citizen (hereafter the "sponsor").
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Permission to appeal was granted by Judge of the First-tier Tribunal Foudy in a decision signed on 1 May 2020 and sent to the parties on 10 June 2020.
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On 23 June 2020, the Upper Tribunal sent to the parties a "Note and Directions" issued by Upper Tribunal Judge Lindsley dated 22 June 2020. Para 1 of the "Note and Directions" stated that, in light of the need to take precautions against the spread of Covid-19, Judge Lindsley had reached the provisional view, having reviewed the file in this case, that it would be appropriate to determine questions (a) and (b) set out at para 1 of her "Note & Directions", reproduced at my para 5(i)(a) and (b) below, without a hearing. Judge Lindsley gave the following directions:
(i) Para 2 of the "Note and Directions" issued directions which provided for the party who had sought permission to make submissions in support of the assertion of an error of law and on the question whether the decision of the First-tier Tribunal ("FtT") should be set aside if error of law is found, no later than 14 days after the "Note and Directions" was sent to the parties; for any other party to file and serve submissions in response, no later than 21 days after the "Note and Directions" was sent to the parties; and, if such submissions in response were made, for the party who sought permission to file a reply no later than 28 days after the "Note and Directions" was sent to the parties.
(ii) Para 3 of the "Note and Directions" stated that any party who considered that despite the foregoing directions a hearing was necessary to consider questions (a) and (b) may submit reasons for that view no later than 21 days after the "Note and Directions" was sent to the parties.
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In response to the "Note and Directions", the Upper Tribunal has received the following:
(i) on the appellant's behalf, a document entitled: "Appellant's skeleton argument" dated 2 July 2020 by Ms Delbourgo, submitted by A. Vincent Solicitors Ltd, the appellant's representatives, by an email to the Upper Tribunal dated 2 July 2020 timed at 23:11 hours;
(ii) on the respondent's behalf, a document entitled: "Respondent's written submissions" dated 13 July 2020 by Mr Lindsay, submitted under cover of an email to the Upper Tribunal dated 13 July 2020 timed at 18:42 hours; and
(iii) on the appellant's behalf, the following submitted by an email dated 20 July 2020 from A. Vincent Solicitors Ltd to the Upper Tribunal timed at 18:30 hours:
(a) The sponsor's undated statement (hereafter the "sponsor's July 2020 statement") at para 1 of which she says she disputes in its entirety the respondent's written submissions dated 13 July 2020.
(b) Copies of a Barclays bank statement for an account in the name of Mercy Venture Limited for the period from 23 May 2020 to 22 June 2020.
(c) A document said to show communications between the sponsor and her daughter, Precious, for the period from 19 March 2020 to 17 July 2020.
(d) Various photographs of a young lady (presumably Miss Precious), young children (presumably the sponsor's grandchildren) and a man holding a baby.
The issues
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I have to decide the following issues (hereafter the "Issues"),
(i) whether it is appropriate to decide the following questions without a hearing:
(a) whether the decision of the Judge involved the making of an error on a point of law; and
(b) if yes, whether the Judge's decision should be set aside.
(ii) If yes, whether the decision on the applicant's appeal against the respondent's decision should be re-made in the Upper Tribunal or whether the appeal should be remitted to the FtT.
Whether it is appropriate to proceed without a hearing
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Neither party has made any submissions on the question whether it is appropriate for the Upper Tribunal to decide the Issues.
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I do not rely upon the mere fact that neither party has made any such submissions as a factor that justifies proceeding without a hearing. I have considered the circumstances for myself in order to reach a decision as to whether it is appropriate for the Upper Tribunal to proceed to decide the Issues without a hearing.
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I am aware of, and take into account, the force of the points made in the dicta of the late Laws LJ at para 38 of Sengupta v Holmes [2002] EWCA Civ 1104 to the effect, inter alia, that "oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge"; Keene LJ at para 47 of Sengupta v Holmes concerning the impact that oral submissions may have on the decision-making process; paras 35 and 48 respectively of the judgments of Lord Bingham and of Lord Slynn in Smith v Parole Board [2005] UKHL 1; the dicta at para 17(3) of Wasif v SSHD [2016] EWCA Civ 82 concerning the power of oral argument; the dicta in the decision in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 to the effect that justice must be done and be seen to be done; and the dicta at para 8 of R (Siddiqui) v Lord Chancellor and others [2019] EWCA Civ 1040 to the effect that it is an "undeniable fact that the oral hearing procedure lies at the heart of English civil procedure", to mention just a few of the cases in which we have received guidance from judges in the higher courts concerning the importance of an oral hearing.
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I am aware of and have applied the guidance of the Supreme Court at para 2 of its judgment in Osborn and others v Parole Board [2013] UKSC 61.
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In addition, I take into account the seriousness of the issues in the instant appeal for the appellant. This appeal concerns rights of appellant and his wife, the sponsor, under Article 8 of the ECHR, i.e. matters of some importance as are many decisions in the immigration field. There was also evidence before Judge Rayner that the sponsor has two grandchildren who are infants.
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I have considered all the circumstances very carefully and taken everything into account, including the overriding objective.
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Whilst I acknowledge that the Tribunal is now listing some cases for face-to-face hearings and using technology to hold hearings remotely in other cases where it is appropriate to do so, the fact is that it is not possible to accommodate all cases in one of these ways without undue delay to all cases.
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Of course, it is impermissible, in my view, to proceed to decide a case without a hearing if that course of action would be unfair in the particular case. If it would be unfair to proceed to decide an appeal without a hearing, it would be unfair to do so even if there would be a lengthy delay in order to hold a hearing face-to-face or remotely or even if there is a consequent delay on other cases being heard. The need to be fair cannot be sacrificed.
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There are cases that can fairly be decided without a hearing notwithstanding that the outcome of the decision may not be in favour of the party who is the appellant. In the present unprecedented circumstances brought about by the coronavirus pandemic, it is my duty to identify those cases that can fairly be decided without a hearing.
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Taking a preliminary view at the initial stage of deciding whether it is appropriate and just to...
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