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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/01768/2013

THE IMMIGRATION ACTS

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MR FAISAL DAWOOD CHAND

Respondent

Representation:

For the Appellant: Mr McVeety, a Senior Home Office Presenting Officer

For the Respondent: Mr Holt, instructed by M A Consultants (London)

DETERMINATION AND REASONS

1. The appellant is a citizen of India who was born on 18^th October, 1987 and who entered the United Kingdom with entry clearance as a working holidaymaker valid from 6^th November, 2007 until 6^th November, 2008. On 12^th June, 2009, he was successful in obtaining a certificate of approval to marry a British citizen, but the marriage did not proceed.

Immigration history

2. On 30^th October, 2009, he applied for leave to remain as a student, but that leave application was refused on 3^rd December, 2009. He made a further application for the same purpose on 6^th January, 2010, but that application was also refused on 12^th June, 2010, this time with no right of appeal. On 28^th September, 2010, he applied for a certificate of approval to marry a Portuguese national, but this was refused on 6^th April, 2011. On 27^th July, 2011 he was served with notice informing him of his liability for removal as an overstayer and requiring him to report on 11^th August, 2011.

3. On 14^th October, 2011 his Portuguese spouse submitted an application for an EEA residence permit and the appellant applied for an EEA residence card as her spouse. Both applications were rejected on 27^th October, 2011, because the spouse had failed to provide any evidence that she was exercising treaty rights.

4. A further application was made on 28^th November, 2011 and these applications were granted on 23^rd May, 2012. The respondent was issued with a residence card as the dependant of an EEA national valid until 3^rd May, 2017.

The deportation order

5. At Manchester Crown Court on 10^th January, 2013, the respondent was convicted of conspiring to do an act to facilitate the commission of a breach of the United Kingdom Immigration Law by a non-EU national and on 6^th March, 2013, he was sentenced to fifteen months’ imprisonment. He did not appeal.

7. By letter of 27^th March, 2013, served on him on 15^th April, 2013, the appellant was notified of his liability to deportation. The appellant made a claim to asylum on 15^th May, 2013 which he subsequently withdrew on 25^th June, 2013. A deportation order was made on 30^th July, 2013.

The decision of the First Tier Tribunal

8. The respondent appealed the decision to make a deportation order against him to a panel of the First-tier Tribunal comprising First-tier Tribunal Judge M Davies and Mrs S A Hussain. They allowed the appeal ion a determination promulgated on 10^th December, 2013, following which appellant applied for permission to appeal against that decision which was granted on 8^th January, 2014.

Error of law

9. On 5^th March, 2014 I found that the panel of the First-tier Tribunal had erred in law because, given the convictions of the respondent and his wife, it was necessary of the panel to state clearly with cogent reasons why they had concluded that the marriage between the appellant and his wife was genuine and they failed to do so.

10. The panel referred at paragraph 35 of their determination to evidence which showed that the parties had both formed the intention to live together permanently and they say that that is supported by “extensive evidence from a large number of people confirming” the genuineness of the marriage, but they do not say what that evidence consisted of and nowhere in their determination do they refer to any of the “extensive evidence from a large number of people”. On 5^th March, 2014 I set aside the First-tier Tribunal’s determination.

11. The matter came for hearing before me today 22^nd September, 2014, when the respondents were represented by Mr Holt instructed by M A Consultants (London) and the appellant was represented by Mr McVeety a Senior Home Office Presenting Officer.

12. Unfortunately Mr McVeety was in some considerable pain having two slipped discs. He was in no position to continue with a hearing. Mr Holt had no objections to the hearing being adjourned in view of the Home Office Presenting Officer’s indisposition.

13. Mr McVeety and Mr Holt both agreed that in the circumstances and given the delay that has already occurred and the likelihood of further delay before the matter can be relisted again before me, the most sensible course would be for this matter to be remitted under paragraph 7 of the Senior President’s Practice Statement to the First-tier Tribunal for hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judge Davies.

5. In the circumstances I have decided that it is appropriate to remit this appeal to the First-tier Tribunal. If it is felt necessary to have a panel hearing then the panel should comprise of a First-tier Tribunal Judge other than M Davies and a lay member other than Mrs S A Hussain otherwise it is simply necessary to list the matter before a judge other than Mr M Davies. The respondent will need a Gujarati interpreter, there will be two witnesses and the matter should be listed for three hours.

Richard Chalkley

Upper Tribunal Judge Chalkley