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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> OE and NK (No hearing; compliance with Rules) Nigeria [2006] UKAIT 00055 (04 July 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00055.html Cite as: [2006] UKAIT 00055, [2006] UKAIT 55 |
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OE and NK (No hearing; compliance with Rules) Nigeria
[2006] UKAIT 00055
Date of hearing: 23 June 2006
Date Determination notified: 04 July 2006
OE and NK |
APPELLANT |
and |
|
ENTRY CLEARANCE OFFICER - ABUJA | RESPONDENT |
(1) The power to determine an appeal without a hearing under r15(2) is discretionary. (2) The appellant's failure to enclose the notice of decision with the notice of appeal is a failure to comply with the Rules but it does not make the appeal invalid. (3) The respondent's failure to send the appeal bundle (with or without a direction to do so) is a failure to comply with the Rules or a direction but it does not amount to conceding the appeal or reversing the burden of proof. (4) It may be possible to deal with the fact that a document is missing by issuing a further direction to send it, stating precisely what the consequence will be if this direction is not complied with.
OE
"The appellant lodged his notice of appeal in terms of Rule 6 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 but in terms of Rule 8(2) the notice of appeal must 'if reasonably practicable' be accompanied by the notice of decision against which the appellant is appealing or a copy of it. The appellant has no representative and presumably therefore the notice of decision was served upon him which instigated his lodging of a notice of appeal. The appellant has failed, in terms of Rule 8, to include the notice of decision or a copy of it therewith. There is no evidence to show that it was not reasonably practicable for him to include this. Accordingly therefore, the appellant has failed to meet the requirements of Rule 8(2) of the Procedure Rules referred to above.
Accordingly therefore, I have to dismiss this appeal through want of jurisdiction a proper appeal not having been lodged."
"The course you propose to study is widely available inNigeria
and leads to the same qualification at a significantly cheaper cost and you cannot satisfactorily explain why you do not undertake the course here.
The cost of your tuition, maintenance and accommodation is to be borne by your sponsor. Funding your education will impose an additional financial burden upon him and I am not satisfied that this increased financial outlay is commensurate with his current economic circumstances and that such funds will be actually be available to you in the United Kingdom. Therefore I am not satisfied, on the balance of probabilities, that you are able to meet the cost of the course and maintain and accommodate yourself without recourse to employment or public funds.
The cost of your tuition, maintenance and accommodation is to be borne by you sponsor, you have not provided any evidence that he is willing to fund you. Furthermore you have provided company bank statements, you have provided no evidence that your sponsor has access to these funds. The balance of this account is modest to say the least. I am not satisfied that sufficient funds are available to fund your trip. In light of the aforementioned I am not satisfied, that you are able to meet the cost of the course and maintain and accommodate yourself without recourse to employment or public funds.
Your proposed course of study is unrealistic because it is inconsistent with your previous pattern of study/previous job experience and does not represent a progression in your education/previous employment pattern and you have not been able to give me credible explanation for this change of direction.
You have been unable to satisfactorily explain how your course will be of benefit to you or enhance your future prospects and as such I am not satisfied that the cost of these studies is proportionate to your current economic circumstances and advantages you might derive from this course of study.
Your account of your personal, economic and social circumstances and how you will use these studies does not satisfy me, on the balance of probabilities, that you intend to leave the United Kingdom on completion of your course."
NK
"I am not satisfied, on a balance of probabilities, that you meet all the requirements of paragraph 57 of the Immigration Rules, and in particular
- that you are able and intend to follow your proposed course
- that you intend to leave the United Kingdom on the completion of any studies, BECAUSE you plan to undertake a BTEC in hospitality supervision at Birmingham College of Food. Currently you work for Hideva restaurant as a waitress earning 4000 Naira (£16) a month. You claim that after your studies you will return and hopefully own the place. I do not find it credible that an employee on such a low income would be prepared to return to there [sic] present place of employment rather than look for better job prospects elsewhere."
"On 2 October 2005 the respondent was directed by the AIT to file by 23 December 2005 a copy of the decision to which the notice of appeal relates, any other document giving reasons for that decision and any application form, record of interview, or any other unpublished document which is relied upon by the respondent. He did not do so and there is no explanation for his failure. I have in the bundle the refusal decision, the notice of appeal and nothing else – nothing at all. I do not have the documents relied on by the respondent including the appellant's own statement of her employment and income. The notice of appeal refers to the respondent having bank statements of her sponsor. They are not in my bundle. If what the respondent said were true, I would be very tempted to dismiss this appeal. However, in the absence of these documents I am unable to assess the respondent's challenge to the appellant's application and I cannot assess whether what the respondent said about her application is true or what she herself said in her Visa Application Form. I have no choice therefore but to accept the appellant's claim, effectively unchallenged."
She therefore allowed the appeal.
Determination with a hearing
"a party has failed to comply with the provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing."
"Where the Tribunal has given directions setting time limits for the filing and serving of written evidence, it must not consider any written evidence which is not filed or served in accordance with those directions unless satisfied that there are good reasons to do so."
This rule cannot apply in the present case, because there has been no evidence submitted later than a direction by the Tribunal required. In a case in which it does apply – for example if the respondent's bundle is late – we think that there will usually be 'good reasons' to consider whatever evidence is available if the alternative is to attempt to decide an issue without evidence or on the basis of woefully inadequate evidence. But, again, the impact on the innocent as well as the defaulting party must be taken into account.
Decision: OE
Decision: NK
Conclusion
C M G OCKELTON
DEPUTY PRESIDENT
Date: