EA/03592/2022

• Status of case: Unreported
• Hearing date: 14 Mar 2023
• Promulgation date: 30 Mar 2023
• Publication date: 24 Apr 2023
• Last updated on: 24 Apr 2023

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005882
First-tier Tribunal No: EA/03592/2022


THE IMMIGRATION ACTS


Decision & Reasons Issued:
On the 30 March 2023


Before

UPPER TRIBUNAL JUDGE LINDSLEY


Between

ELHADJI MODOU NDIAYE
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Heard at Field House on the papers on 14 March 2023

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Senegal born on 10th October 1984. He applied for entry clearance under the EU Settlement Scheme in accordance with Appendix EU of the Immigration Rules on the basis that he is married to Aiva Lubina a citizen of Romania. His application was refused on 11th March 2022. His appeal against the decision was dismissed by First-tier Tribunal Judge Sweet in a determination promulgated on the 20th July 2022.
2. Permission to appeal was granted by Upper Tribunal Judge Sheridan on 15th January 2023 on the basis that it was arguable that the First-tier judge had erred in law in determining the appeal without the appellant’s bundle and so it was arguably undermined by procedural unfairness.
3. By a decision of 7th February 2023 I set out to the parties that it was my provisional view that this appeal could be allowed by consent on the papers without the need for a hearing, and remitted for a de novo hearing before the First Tier Tribunal. The parties had until 10am on Monday 13th March 2023 to object to this course of action. No response was received to this decision.
Submissions – Error of Law
4. The grounds of appeal assert that the appeal was determined in a procedurally unfair way as the appellant’s representative did not receive the direction to lodge the bundle of documents on his behalf. It is clear from the decision at paragraph 3 that no appellant’s bundle had been received by the First-tier Tribunal, and documents in that bundle would have addressed the key issue in the appeal namely the validity of the appellant’s marriage.
5. The Rule 24 notice of 24th February 2023 accepts that it is in the interests of justice and fairness not to oppose the appeal, and expresses the opinion that the appeal should be remitted to the First-tier Tribunal to be heard de novo.
Conclusions – Error of Law
6. For the reasons set out above the appeal the making of the decision of the First-tier Tribunal involved procedural unfairness with the appellant not having an opportunity to make his case before that Tribunal by reference to relevant documents.
7. In these circumstances it is appropriate that the matter is remitted to be reheard by a Judge of the First-tier Tribunal other than Judge Sweet.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal.
3. I remit the appeal to be remade by the First-tier Tribunal.


Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14th March 2023