Upper Tribunal (Immigration and asylum chamber), 2022-06-30, HU/06090/2020
| Appeal Number | HU/06090/2020 |
| Hearing Date | 11 April 2022 |
| Published date | 18 July 2022 |
| Date | 30 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/06090/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06090/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 11th April 2022 |
On 30th June 2022 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mr MD NAZMUL HAQUE
(anonymity direction NOT made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Biggs, Zyba Law
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals against the decision of First-tier Tribunal Judge Ripley which dismissed the appellant’s appeal from the refusal of his human rights claim made following an application for indefinite leave to remain pursuant to paragraph 276B of the Immigration Rules on 9th June 2020. The judge rejected the assertion that the appellant was entitled to Indefinite Leave to Remain and that he was a victim of poor service by earlier representatives or there was historical injustice.
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The appeal centres on the appellant’s assertion that he had not been validly notified of a decision letter in 2016 refusing further leave to remain. Consequently he would be classified as an overstayer and could not avail himself of section 3C leave.
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The basis for the judge’s rejection was
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her findings [23] to [30] that the appellant was validly notified of a decision letter dated 14th March 2016 refusing his application for further leave to remain (dated 1st October 2015) because the appellant had provided an e-mail address in the October 2015 application form (“Nazmul1933@gmail.com”) which the respondent had used to communicate the 14th March 2016 decision letter on 16th August 2016 as permitted by Article 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order) giving rise to a presumption of valid notice; it was found to be “the appellant’s responsibility to check that e-mail address and if he was no longer able to access it himself to inform the respondent” so that the First-tier Tribunal was “not satisfied the appellant has rebutted the presumption of” notice pursuant to Article 8ZB;
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her findings at [31] that the appellant would in any event have become an overstayer in February 2019, this being the date the Court of Appeal was found to have determined an in-time application for permission to appeal; and
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her finding at [35] that
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the appellant had not been the victim of poor professional immigration advice or of historical injustice in that any detriment the appellant suffered was the result of his conduct because he was responsible for providing an e-mail address to the respondent in respect of the October 2015 application which the respondent was entitled to use so that “if there was any error, it was that of the appellant himself ([29])”; the appellant was aware that the Court of Appeal had dismissed his application for permission to appeal before he applied for ILR; and even if he was not aware of this, the appellant’s immigration status was still precarious for the purposes of Article 8 and Section 117B of the Nationality, Immigration and Asylum Act.
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The Grounds of Appeal
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Essentially the judge had materially erred in law by
(i) failing correctly to apply article 8ZA of the 2000 Order at para 29,
(ii) failing to consider material evidence and or considered immaterial matters when finding the appellant was validly notified of the 14th of March 2016 decision. The judge did not understand the case that the then representatives had used the email address Nazmul1933@gmail.com as a contact email address for the 1 October 2015 application but not notified the appellant of any email received at that address on the 14th March 2016 decision so presumption of notice could be rebutted.
(iii) finding that ‘the file would have contained a copy of the decision letter dated 14th March 2016’ was not supported by adequate evidence and thus open to her.
(iv) relying on matters not put to the appellant resulting in procedural unfairness.
(v) failing to appreciate at [35] that the appellant had a ‘reasonable misapprehension’ as to his immigration status because he had not been informed of the outcome of his application for permission to the Court of Appeal and this could strengthen what otherwise would be a weak private life in the light of section 117B(5) of the Nationality, Immigration and Asylum Act 2002. The judge failed to make an adequately reasoned finding as to whether the appellant might have had a reasonable misapprehension.
(vi) and further in the light of the above the judge’s reasoning at [35] regarding article 8 ‘outside the rules’ was undermined.
Ground (i)
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It was submitted that the judge was required to decide that only the representatives at the time Success Consultancy Limited (‘SFS’) had access to the e-mail Nazmul1933@gmail.com as a contact e-mail address in respect of the 1st October 2015 application but had not notified the appellant of any e-mail received at that address in respect of the 14th March 2016 decision letter.
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Properly interpreted article 8ZB permitted the appellant to rebut any presumption of notice of the 14th March 2016 decision by proving that he was not provided with a copy of the decision by SFS. The evidence established on balance he was not so provided. These points were not determined.
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The judge concluded that it was the appellant’s responsibility to check that the Nazmul1933@gmail.com address and if he were no longer able to access it to inform the respondent [29]. Thus the judge was not satisfied the appellant had rebutted the presumption. However Article 8ZB did not impose a responsibility on the applicant to check a correspondence address provided in an application form.
Ground (ii)
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The judge failed to appreciate that the appellant’s case as supported by the oral and documentary evidence was that SFS had used the e-mail address Nazmul1933@gmail.com as a contact e-mail address in respect of the 1st October 2015 application but had not notified the appellant of any e-mail received at that address in respect of the 14th March 2016 decision, so that any presumption of notice of that decision could be rebutted pursuant to Article 8ZB of the Order. This was supported by Counsel’s note of the appellant’s evidence.
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The appellant’s evidence was that he stated in oral evidence was that the appellant’s representative “told me that the e-mail on the form [ABp 21] is a contact e-mail for himself”.
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The appellant’s case was not that this was per se improper or an error or that this caused problems, but it was instead that only SFS had access to the e-mail address Nazmul1933@gmail.com but they failed to inform the appellant of the 14th March 2016 e‑mail if it was indeed, as the respondent claims, sent to that address in August 2016.
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This is supported by documentary materials in the appellant’s bundle, including the correspondence and the WhatsApp messages.
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It was no part of the appellant’s case that the SFS inexplicably made up, [12], [24] and [26], the e-mail address of Nazmul1933@gmail.com in error, resulting in a problem and difficulties with the e-mail.
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The result of the judge’s erroneous and unreasonable understanding of the appellant’s case in evidence was that she failed to reasonably evaluate the appellant’s case. Once it was understood that the appellant’s case was that his representative deliberately used the e-mail Nazmul1933gmail.com but failed to inform the appellant of any decision letter communicated via that e-mail address. The judge’s reasoning at [23] to [29] loses its force and was irrational.
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Although the judge’s observations at [24] and at [25], [28] do relate to the appellant’s true case. This reasoning alone is insufficient to justify the wholesale rejection of the appellant’s oral and documentary evidence which supported the proposition that he was unaware of the 14th March 2016 decision before he applied for asylum in 2017.
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Turning to the judge’s reasoning at [25] to [29] this is seriously flawed when considering against the backdrop of the appellant’s true case and evidence.
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On his evidence there was no obvious reason for the appellant to make inquiries of his representative or to complain about their choice of e-mail address or to contact the respondent in order to provide a new contact e-mail address at least not before the respondent had complained the 14th March 2016 e-mail was sent to Nazmul1933@gmail.com in August 2016, a matter that the judge does not address in her findings. Despite this the judge’s analysis at [25] to [27] is heavily dependent on these matters.
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Overall the judge considered immaterial matters and failed to consider material evidence.
Ground (iii)
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The judge materially erred at [30] by speculating about the contents of materials disclosed by the respondent to the appellant but which is not in evidence before the judge as to which the appellant did not give oral evidence.
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