Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00009/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 January 2017
On 9 February 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr geidrius kavaliauskas
(aNONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Ms J Bond instructed by Irving & Co Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant seeks permission to appeal against the decision of First-tier Tribunal Judge Davey promulgated on 25th November 2016. In that decision he concluded that the appellant had no valid appeal before the Tribunal.
2. By way of background the appellant is a Lithuanian national who arrived in the UK on 21st May 2001 and his case has a procedural history to it. To cut through that procedural history on 14th May 2013 the Secretary of State made a decision to deport the appellant and he appealed against that decision. On 26th July 2013 his appeal was allowed by the First-tier Tribunal to the extent that the Secretary of State had to reconsider her decision which she did within a decision of 30th December 2015. That is the decision which is the crux of the proceedings here. That decision maintained the decision to deport the appellant but was certified under Regulation 24AA of the Immigration (European Economic Area) Regulations.
3. The appellant lodged an appeal to the First-tier Tribunal. There then followed judicial review proceedings by which it appears that the Secretary of State agreed that the appellant would not be removed from the United Kingdom pending his appeal. That was settled by way of consent in an order of 25th May 2016. I stress I have not seen that order.
4. The appellant's appeal was then listed for full hearing on 2nd September 2016 and came before First-tier Tribunal Judge Davey. He took the view formally to adjourn the appeal at the end of the appeal hearing and directed the respondent to provide the Tribunal with notification in writing as to whether or not the certification under paragraph 24AA of the EEA Regulations was withdrawn. It would appear that he did not invite submissions on the validity of the appellant's appeal at the hearing. In the determination it was stated that the Secretary of State made a certificate under Regulation 24AA certifying that there was no in country right of appeal and no application made on different grounds as to why the appellant should not be removed. There is an error of law in the decision. The decision of 30th December 2015 does not state that the appellant does not have an in country right of appeal rather it states that Regulation 24AA(2) that the appellant can be removed notwithstanding the appeal process. It does not state that the appeal is only to be exercised out of country rather that the decision does not preclude the appellant's removal from the United Kingdom. As pointed out he could indeed have made an application to re-enter.
5. There was also apparently a consent order with the Secretary of State agreeing that the appellant should not be removed from the United Kingdom. There has now been produced a letter of 5th September 2016 from the Secretary of State, and not before First-tier Tribunal Judge Davey, confirming that the certificate under Regulation 24AA was indeed withdrawn, that letter was dated 5th September 2016.
6. I can see that Judge Davey appeared not to have seen that letter of 5th September 2016. It does not appear to have been put before him and for which he is not responsible. Nonetheless there has been a procedural error of law and I therefore will set aside this decision. There is clearly a valid appeal and jurisdiction. I remit the matter back to the First-tier Tribunal for hearing.
7. There has been an application regarding whether the matter should be considered by Judge Davey on the basis that the appellant states that this is a privately paid application. Mr Armstrong does not appear to have any strong representations one way or another on that and I consider that the matter should go back to First-tier Tribunal Judge Davey for a full hearing but which might be merely be contributed to by way of supplementary further submissions from the appellant. My reasoning on that is not because the appellant is privately paying but because there would appear already to have been an extensive hearing in this matter, but without findings of any substance that have been the subject of challenge in any way by either party.
8. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal (specifically First-tier Tribunal Judge Davey) under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

NO ANONYMITY DIRECTION

Signed Helen Rimington Date 7th February 2017

Upper Tribunal Judge Rimington

Approval for Promulgation

Name of Upper Tribunal Judge issuing approval:
Ms H Rimington
Appellant's Name:
Mr Geidrius Kavaliauskas
Case Number:
DA/00009/2016

Oral decision (please indicate)

I approve the attached Decision and Reasons for promulgation

Name:

Date:

Amendments that require further action by Promulgation section:

Change of address:

Rep: Appellant:

Other Information: