United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/15028/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 19 December 2017	On 18 January 2018

 

 

Before

 

UPPER TRIBUNAL JUDGE LANE

 

Between

 

adebimpe oluwatosin adeyemi

(ANONYMITY DIRECTION not made)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellant: In person

For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              The appellant, Adebimpe Oluwatosin Adeyemi was born on 7 August 1986 and is a female citizen of Nigeria. The litigation history in this case is succinctly set out in the decision of the First-tier Tribunal (Judge Brewer) as follows:

2. The appellant's application for an extension of stay in the UK was rejected first on 28 October 2014 and again on 31 March 2015. The appellant appealed to this Tribunal following the respondent's letter of 31 March 2015 when her appeal came before Judge Nicholls for hearing on 11 January 2016. The case was dealt with on the basis of documents only.

3. Judge Nicholls determined that the appellant had no right of appeal on the basis of no immigration decision had been made which was capable of being appealed.

4. The appellant's original application was submitted before her leave to remain had expired but the respondent said it was unable to collect a fee and wrote to the appellant on 28 October 2014 stating the bank had rejected the payment and thus the application was returned as invalid. The appellant's leave to remain expired on 28 October 2014.

5. The new application was received from the appellant on 6 November 2014. The reasons for refusal letter dated 31 March 2015, although it does deal with the basis of the application for leave, nevertheless states that although the application was received, it was refused because at the date of the application was received the appellant did not have leave to remain in the UK.

6. For her part, the appellant claimed that she did make a valid application, in time. That application was sent to the respondent on 18 October 2014. However, the respondent argued that although it received the application in time, it was not valid because although the appellant had included debit/credit card details on the application form, her bank had rejected payment.

2.              Judge Nicholls dismissed the appellant's appeal on the basis that he had no jurisdiction. Leave to appeal to the Upper Tribunal was granted in June 2016 and the appeal came before Deputy Upper Tribunal Judge McGinty for hearing on 29 July 2016. Judge McGinty found that there had been procedural unfairness (there appeared to be doubt as to whether the question of jurisdiction had been taken as a preliminary issue or whether the appeal had been determined on its merits). The decision of Judge Nicholls was set aside and the matter remitted to the First-tier Tribunal (Judge Brewer). At [11], Judge Brewer wrote:

11. At the outset of the hearing I canvassed with the parties how best to proceed. The substantive appeal is potentially complex as it raises issues under the Immigration Rules as well as the National Minimum Wage Act 1998 and the associated National Minimum Wage Regulations 2015. The jurisdiction issue is a relatively short point. It was agreed therefore to deal first with the jurisdiction question and only if that was aside in the appellant's favour would it be necessary to hear her evidence and argument on the substantive appeal.

3.              Judge Brewer examined the question of jurisdiction and concluded at [30]:

30. In short, notwithstanding that the correct details were included on her application form by the appellant, her bank rejected payment. In the absence of any fault on the part of the respondent in seeking payment, it is my determination that the rejection of the appellant's application on 28 October was not an immigration decision within the meaning of the 2002 Act and this Tribunal does not have jurisdiction to hear an appeal in respect of that rejection.

4.              The judge went on to say [31]:

31. At the date of the second application, 6 November 2015, the appellant's leave to remain had already expired. There being no valid extant leave to be extended, the rejection of that application was also not an immigration decision under the 2002 Act which the appellant can appeal.

5.              At the appeal hearing at Field House on 19 December 2017, the appellant's representative attended the hearing late and, in her absence, I heard from the appellant in person. She referred us to a letter dated 4 May 2017 from TSB addressed to the appellant herself. Part of this letter reads:

Having checked your account, I confirm that there was no payment of £601 made during the dates of 18 October 2014 to 28 October 2014. I understand that you held sufficient funds in your account during these dates to cover the payment amount however there was no attempt to take a payment from your account during these dates.

6.              Obviously, this letter was not before Judge Brewer who heard the appeal in April 2017. He cannot, therefore, be criticised for failing to have any regard to the content of a letter which had not been written by the date of the hearing. Having said that, the overriding duty of the Tribunal is to determine this appeal fairly. I consider the letter from the TSB does resolve the question which was before the First-tier Tribunal which the judge (having no better evidence before him) determined against the appellant, that is whether or not the appellant's bank had rejected payment. It is apparent from the letter that the bank did not reject payment but, for whatever administrative or technical reason, the respondent had not sought payment from an account which had held sufficient funds to meet payment of the application fee. In the light of my duty to deal with this appeal fairly and intending no criticism whatever of Judge Brewer, I have decided to set aside the First-tier Tribunal's decision. I find on the evidence that the appellant did make a valid application in October 2014 and that that application should not have been rejected for non-payment of the fee. The consequence of that finding is that appellant did have leave to remain when she appealed against her decision to refuse her application. I determine the jurisdiction issue in favour of the appellant and, referring to [11] of Judge Brewer's decision, it is necessary for there to be a proper determination of the appeal on its merits. I consider that that process is better conducted by the First-tier Tribunal, to which this appeal is now returned. The First-tier Tribunal need not consider again the question of jurisdiction which the Upper Tribunal has now resolved in favour of the appellant. Instead, the First-tier Tribunal should proceed to address the reasons for the refusal of the appellant's application as detailed in the second letter of the respondent dated 31 March 2015 together with the appellant's grounds for challenging that decision.

Notice of Decision

7.              The decision of the First-tier Tribunal which was promulgated on 24 April 2017 is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal (not Judge Brewer) for that Tribunal to remake the decision.

8.              No anonymity direction is made.

 

 

 

 

 

 

Signed Date 10 January 2018

 

 

Upper Tribunal Judge Lane