EA/04044/2016

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The decision


IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04044/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 06 February 2017



Before

UPPER TRIBUNAL JUDGE McWILLIAM


Between

Mr Segun Abdullahi Hassan
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Unrepresented
For the Respondent: Mr S Kotas, Home Office Presenting Officer


DECISION AND REASONS

1. The appellant is a citizen of Nigeria and his date of birth is 20 February 1982. He made an application for a residence card on the basis of his marriage to an EEA citizen, Ms M Kebbeh Samangari, and this application was refused by the Secretary of State in a decision of 16 March 2016. He appealed against that decision and his appeal was determined on the papers at his request and dismissed by Judge of the First-tier Tribunal Heynes in a decision that was promulgated on 6 July 2016.

2. I am satisfied that there is a procedural irregularity which amounts to a material error in this case because it is clear from the decision of Judge of the First-tier Tribunal Heynes that he did not have before him evidence that had been submitted by the appellant in support of his appeal. The unrepresented appellant submitted grounds of appeal (in reality his witness statement), together with a covering letter and a payslip relating to his wife (the EEA national) dated June 2016. These were sent to the Tribunal on 30 March 2016. There was also a further statement from the appellant that was submitted on 2 June 2016 together with a certificate of registration relating to the appellant and his wife's private health insurance, a letter relating to the appellant's wife's treatment at St George's Hospital and further payslips relating to the appellant.

3. Whilst I appreciate that there was in fact no witness statement from the appellant's wife before the First-tier Tribunal and that this was a paper case, there was a considerable amount of evidence that the judge did not take into account and I cannot conclude with certainty that had that evidence been before the First-tier Tribunal Judge and taken onto account, he would have reached the same conclusion.

4. I set aside the decision of the First-tier Tribunal to dismiss the appellant's appeal under the EEA Regulations. Because of the nature of the error (the appellant has effectively been deprived of a fair hearing), I remit the case to the First-tier Tribunal.

Notice of Decision

The decision of the First-tier Tribunal to dismiss the appellant's appeal is set aside and the matter remitted to the First-tier Tribunal for a re-hearing.

No anonymity direction is made.


Signed Joanna McWilliam Date 1 February 2017


Upper Tribunal Judge McWilliam