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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/00744/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 4 September 2019	On 27 September 2019

 

Before

 

UPPER TRIBUNAL JUDGE CRAIG

 

 

Between

 

mr Behnam SULTANI ANWARI

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr A Fouladvand, Legal representative of MAAS Solicitors

For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The appellant is a national of Iran who appeals with leave against a decision of First-tier Tribunal Judge Griffith, promulgated on 17 May 2019 following a hearing at Taylor House on 22 February 2019.

2.              At that hearing the respondent had not been represented and the judge was concerned that she may have had insufficient information on which to make that decision.

3.              At paragraph 29 of her decision the judge records as follows:

"After the hearing, I decided it was appropriate to issue directions for further submissions to be made in light of the absence of a Presenting Officer at the hearing. I set out below the directions which were issued to the parties on 5 March 2019:

To the Appellant and the Respondent:

1.              Further to the hearing of this appeal on 21 February 2019 when the respondent was not represented, the appellant and respondent are invited to make written submissions with supporting evidence within 21 days on the issue of the feasibility of the appellant's return to Iran in light of his claim to be undocumented.

2.              The parties are at liberty to apply for a further oral hearing.

3.              The appellant is, in any event, to serve a full respondent's bundle".

4.              It is not clear what is meant by the appellant being directed to serve "a full respondent's bundle" but it does seem clear that the judge was not happy to proceed on the basis of the submissions and evidence which she had by that stage heard.

5.              On 22 March 2019, that is within 21 days of the directions and in accordance with the directions, further submissions were served on behalf of the appellant. Regrettably, however, it seems that this document was not put before the judge because at paragraph 32 of her decision (which was promulgated nearly two months later), she records that "No further submissions have been received from the appellant or from his representatives".

6.              Clearly, and this is accepted on behalf of the respondent before this Tribunal, this is a procedural error, because the submissions ought to have been considered by the judge.

7.              It is right to record that the submissions are not especially strong and it may well be that it would have been open to the judge to give reasons briefly why she rejected them, but however weak these submissions may have been, they ought to have been taken into account and they were not. In these circumstances, especially as the judge had considered the case to be sufficiently finely balanced to allow the parties liberty to apply for a further oral hearing, I cannot say that the procedural irregularity was so immaterial as should allow this Tribunal to take no action with regard to it. A party should be allowed to rely on submissions that have been made, and it will only be rarely if ever that a failure such as this will not be material.

8.              It follows that the decision will have to be remade and in my judgment there will need to be a complete rehearing of the appeal. In these circumstances, it is appropriate to remit this case back to the First-tier Tribunal so that the decision can be remade there and I will so order.

 

 

Notice of Decision

9.              I set aside the decision of the First-tier Tribunal Judge as containing a material irregularity (being the procedural error that the further submissions which had been made on behalf of the appellant were not put before the judge) and direct that the appeal be remitted for rehearing at Taylor House by any judge other than First-tier Tribunal Judge Griffith. The hearing will be a de novo hearing with no findings of fact retained.

No anonymity direction is made.

 

 

Signed:

 

Upper Tribunal Judge Craig Date: 23 September 2019