Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02138/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th October 2016
On 20th October 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

Mrs Regina Omenebelle Ofeke
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Khalid, Counsel, instructed by Chancery CS Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Nigeria. Her date of birth is given as 13th May 1945. She lawfully entered the UK with entry clearance. On 13th May 2015 she applied for a residence card pursuant to the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) as confirmation of her right to reside in the UK as the extended family member of Mr George Ubumeh Ofeke, a person who holds German nationality.
2. I pause at this early stage to make the following observation. The appellant is the mother of George Ofeke. This is clear from the documentation that was provided with the application for the EEA residence card. This documentation includes a birth certificate, the authenticity of which has not been challenged, confirming the relationship. This relationship was also referred to in the covering letter from Chancery CS Solicitors dated 13th May 2015 accompanying the application. Given this familial relationship it is unclear why the appellant's solicitors advanced the application on the basis that the appellant is Mr Ofeke's extended family member.
3. Under Regulation 7(1)(c) of the 2006 Regulations a family member includes a dependent direct relative in his ascending line. It has not been disputed that the appellant is the ascending direct relative of Mr Ofeke. The issue for determination is whether she is dependent on him as a family member, not as an extended family member as defined in Article 8 of the 2006 Regulations. This vital distinction appears to have been lost on the Appellant's solicitors and the Home Office and, with respect, the judge who considered the appeal on the papers.
4. Both parties and the First-tier Tribunal proceeded on the basis that the appellant was an extended family member when it is quite clear that she is in fact, the direct family member of an EEA national in the ascending line. The failure to appreciate this distinction in my judgment constitutes a material error of law by the First-tier Tribunal, who dismissed the appeal on the papers in a decision promulgated on 7th April 2016. The judge gave no consideration to the actual relationship between the appellant and her son and therefore misdirected himself as to the relevant law.
5. The judge dismissed the appeal on the basis that there was no evidence to show that the appellant was dependent on her son either in Nigeria or in the UK. No evidence appeared to have been provided to the Tribunal pursuant to directions issued on 2nd March 2016. In the absence of any further evidence the judge concluded that there was no adequate basis to support the Appellant's claimed dependency and dismissed the appeal.
6. The judge was not however unaware that further evidence in support of the claimed dependency had in fact been sent to the Tribunal. On 2nd March 2016 the Tribunal issued directions to the appellant requiring any further written submissions or evidence to be sent by 30th March 2016. At the error of law hearing the appellant produced a transmission verification report dated "1.4.2022". I am prepared to find that the 2022 is a clerical error. I am also prepared to find that the reference to "1.4." relates to '1st April' 2016. This indicates that, at 18.25 on 01 April 2016, a 38 page fax was sent to the First-tier Tribunal. The First-tier Tribunal does not have any record of receipt of this faxed transmission. It is also apparent that the fax transmission was, in any event, sent after the deadline of 30th March 2016.
7. I have additionally seen a recorded delivery slip indicating that the appellant's bundle was also sent to the Tribunal on 2nd April 2016. Indeed I have before me the actual bundle, including the delivery slip, which was received by Hatton Cross on 5th April 2016. The documents in the Tribunal file indicate that, on that day (i.e. 05 April 2016) the file was sent to the First-tier Judge to consider the appeal on the papers. The judge, however, did not make his decision until 7th April 2016 and it was not promulgated until 13th April 2016.
8. I am satisfied, having regard to this evidence, that the First-tier Tribunal did receive the 38 page bundle of evidence prior to the consideration by the judge of the appeal and the promulgation of his decision. E & R v Secretary of State for the Home Department [2004] EWCA Civ 49 is authority for the proposition that a Tribunal is seized of an appeal up until the date its decision is promulgated. Moreover, a successful appeal is not dependent on the demonstration of some failing on the part of the Tribunal and an error of law may be found to have occurred in circumstances where some material evidence, through no fault of the Tribunal, was not considered, with resulting unfairness (MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC). I fully accept that the appellant did not comply with the directions but the judge did not dismiss the appeal because of a failure to comply with the directions. The judge was entirely unaware of the existence of materially relevant documents that were within the possession of the First-tier Tribunal.
10. In my judgment the administrative staff at Hatton Cross failed to attach the bundle of documents to the file in an expedient manner and, as a result, the judge did not have relevant evidence before him. Although the judge is blameless for his failure to consider evidence that was not before him I am satisfied, given the history of this matter, that there has been a procedural impropriety sufficient to render the decision unsafe as relevant evidence was not taken into account by the judge even though it was in the Tribunal's possession. I am satisfied that this constitutes a material error of law.
11. I have therefore found that there are two material errors of law, the first being the judge's misdirection as to the applicable law, the second relating to procedural unfairness. In these circumstances there has been no proper consideration of the application by the First-tier Tribunal and it is appropriate to remit the matter back to the First-tier Tribunal to be considered afresh before a judge other than Judge of the First-tier Tribunal Hembrough.

Notice of Decision
The appeal is allowed to the limited extent that it is remitted for a fresh hearing before the First-tier Tribunal, to be heard by a judge other than Judge of the First-tier Tribunal Hembrough.
As the appellant initially requested a paper hearing the First-tier Tribunal will consider the appeal on the papers unless the appellant makes any application, and pays the requisite fee, to have her appeal considered at an oral hearing.
No anonymity direction is made.

Signed Date
Upper Tribunal Judge Blum 19 October 2016