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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005398
	First-tier Tribunal No: HU/61662/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 11 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

 

Between

 

FESTIM CANI

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr P. Turner

For the Respondent: Mr E. Terrell

 

Heard at Field House on 3 February 2025

 

­

DECISION AND REASONS

 

1.              The Appellant, a citizen of Albania born on 28 November 1989, appeals with permission against the decision of First-tier Tribunal Judge J G Raymond (' the Judge'), dated 22 September 2024. In her decision (' the Determination'), the Judge dismissed the Appellant's appeal against the Respondent's refusal of his application for entry clearance as a partner, made on 29 June 2023 and refused on 6 September 2023. The refusal disputed whether the Appellant and his partner, Ms Zambo (' the Sponsor'), had a genuine and subsisting relationship and also found that there were no unjustifiably harsh consequences

 

Determination and appeal

2.              In the Determination, the Judge held that the Appellant and the Sponsor were not in a genuine and subsisting relationship. In reaching that conclusion, the Judge relied upon the " very substantial degree of obscurity that surrounds the economic life of the Sponsor herself in the UK, as evidenced by the statements for her Revolut bank account" (§65). At §§67-79 and §§90-91 the Judge considered numerous transactions in and out of the Sponsor's bank account. At §80 she held as follows:

" I find that these transactions show that the account in the name of the Sponsor is also used and operated in fact by other individuals and/or entities for their personal financial affairs. And that they reveal a completely different picture of her life from one that would show it is shared in any financial sense with the Appellant, in a manner that would be expected to exist between a couple with a joint life."

3.              This analysis materially informed the Judge's conclusion at §95 that the couple were not in a genuine and subsisting marriage.

4.              By grounds of appeal dated 18 October 2024, the Appellant appealed against the decision, challenging the Judge's conclusions as irrational and / or procedurally unfair as the issues regarding the Sponsor's bank statements were not raised either by the Respondent nor the Judge during the hearing. This was supplemented by a witness statement from Mr Pullinger, counsel in the First-tier Tribunal, which confirmed that:

" There were no points raised during cross-examination or in submissions relating to the sponsor's bank statements. The concerns that FTJ Raymond has addressed at paragraphs 62-86 and 90-98 were not put to the sponsor by either the FTJ or Ms Kelly."

5.              Permission was granted on 25 November 2024 by FTTJ Taylor (limited to the ground set out above).

6.              No r. 24 notice was filed.

Appeal hearing

7.              At the outset of the error of law hearing before us, Mr Terrell accepted that the Judge's decision was vitiated by procedural unfairness on the grounds set out by the Appellant. Mr Turner agreed with that position and invited us to remit the appeal to the First-tier Tribunal for a full de novo hearing. Mr Terrell agreed with that position.

Error of law and disposal

8.              We agree with the parties that the Determination contains a material error of law, namely it was not fair for the Judge to rely on matters within the Sponsor's bank statements which were neither raised by the Respondent nor the Judge. The Appellant has thereby been deprived of the opportunity to respond to matters held against him, contrary to the requirements of fairness.

9.              It is well-established that, where a judge has concerns about the evidence adduced by a party that has not been ventilated by the parties themselves, they may be required to raise their concerns to ensure that each party has a reasonable opportunity to put their case fully: AM (Fair hearing) Sudan [2015] UKUT 656 (IAC). In Dahir Elmi Abdi & Ors v ECO [2023] EWCA Civ 1455 the Court of Appeal noted a " wealth of authority" on this point, noting the " principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion"(§33, citing TUI UK Ltd v Griffiths [2023] UKSC 48).

10.          The transactions within the Sponsor's bank account did not amount to an " obvious inconsistency in the evidence which [...] should foreseeably have been addressed without the tribunal specifically raising it" (§36). Whatever the source of the transactions, they are not so self-evidently aberrant as to call for explanation in the absence of a point being taken by the Respondent or raised by the Judge. In circumstances where the Judge reached the conclusion that the statements showed that the Sponsor's account " is also used and operated in fact by other individuals and / or entities for their personal financial affairs", that analysis had to be raised with the Appellant and / or Sponsor in order to allow them to respond to the case against them.

11.          Mr Terrell invited us to preserve the findings at §§50-61 of the Determination, as these were not the subject of an appeal. Mr Turner's position was that it was impossible to unpick any part of the Determination. As the hearing below was tainted by unfairness, we consider that the Appellant is entitled to a full de novo hearing and do not preserve any of the Judge's findings.

12.          The parties are in agreement that this matter should be remitted to the First-tier Tribunal. We agree that this is appropriate as the Appellant has not had a fair first instance hearing.

Notice of Decision

The making of the decision of the First-tier Tribunal involved a material error of a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal shall be remitted to the First-tier Tribunal for a de novo hearing to be reheard by any judge except First-tier Tribunal Judge Raymond.

 

 

Miranda Butler

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

3 February 2025