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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005315
	First-tier Tribunal No: HU/63208/2023 LH/03341/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

 

Between

 

TEMUULEN BATBOLD

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms A. Kogulathas, instructed by Visa Legal

For the Respondent: Ms H. Gilmore, Senior Home Office Presenting Officer

 

Heard at Field House on 06 February 2025

 

 

DECISION AND REASONS

1.              The appellant appealed the respondent's decision dated 02 November 2023 to refuse a human rights claim in the context of an application for leave to remain on grounds of 10 years lawful residence.

2.              First-tier Tribunal Judge Moffatt ('the judge') dismissed the appeal in a decision sent on 18 September 2024. The appellant was unrepresented at the hearing and did not have the assistance of an interpreter.

3.              The grounds of appeal made rather general points arguing that the judge should have done more to assist an unrepresented appellant, and failed to take sufficient account of certain aspects of the evidence. Although the judge who granted permission to appeal found that most of the grounds were unimpressive, she ordered a copy of the recording of the hearing to be made available to assess whether any fairness issue might have arisen.

4.              Having listed to the recording on the morning of the hearing in the Upper Tribunal, the parties were in agreement that some fairness issues had arisen. These included, amongst other things, (i) a failure to explore the extent of the poor representation mentioned by the appellant at the hearing and the impact that it might have had on her ability to prepare the case properly; (ii) a failure to ask the appellant why she might not have had much correspondence relating to co-habitation with her partner; and (iii) failure to consider the material fact that the appellant had previously been granted 5 years leave to remain as a partner.

5.              It is not necessary to give detailed reasons for this decision because the parties are in agreement and have consented to the Upper Tribunal only giving summary reasons (see rule 40(3) of The Tribunal Procedure (Upper Tribunal) Rules 2008).

6.              This is a borderline decision. Having listened to the recording myself, I am satisfied that the judge conducted the hearing in a polite and professional manner. She explained the procedures to the appellant, checked the documents, and assisted her to understand the proceedings throughout the hearing. Although she did appear to inspect some additional documents that the appellant had brought with her, other aspects of the evidence were perhaps not explored in sufficient depth given that the appellant was unrepresented. Relevant matters, such as the previous grant of leave to remain as a partner, were not taken into account. The difficulties that the appellant had with a person who might have been fraudulently putting himself forward as a legal representative were not known to the judge at the date of the hearing. Those difficulties have been evidenced in more detail for this hearing.

7.              Even after she was failed by the person who purported to be a legal representative the appellant still had many months to seek alternative advice and to prepare her case for hearing. She is an educated person who could and perhaps should have still been able to produce more detailed evidence relating to the main issues in the appeal with the assistance of the First-tier Tribunal's directions. If she was still relying on her relationship with a British partner, it might also be obvious that he should attend the hearing in some form so that the First-tier Tirbunal could evaluate the strength of the relationship.

8.              Nevertheless, the parties have highlighted sufficient concerns about certain aspects of the hearing to justify setting the decision aside. It is in the interests of justice for the appeal to be remitted to the First-tier Tribunal to provide the appellant with a fair opportunity to put forward her case now that she has the benefit of legal advice. Although the recording indicated that she speaks good English, it might also be of benefit for her to give evidence in her first language with the assistance of relevant interpreter, which should be notified to the First-tier Tribunal.

Notice of Decision

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is set aside

The appeal will be remitted to the First-tier Tribunal for a fresh hearing

 

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

06 February 2025