Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers EA/04783/2020
[UI-2021-001126]

THE IMMIGRATION ACTS

Heard at Manchester
Decision and Reasons Promulgated

On the 14 June 2022

Before

Deputy Upper Tribunal Judge Sills

Between

MUHAMMAD AWAIS ANSAR
(Anonymity Direction Not Made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

ERROR OF LAW DECISION
Introduction
1. The Appellant (A) appeals under the EEA Regulations 2016 against the decision of First-Tier Tribunal Judge Birrell (the Judge) dated 8 March 2021, dismissing his appeal against the refusal of his application for an EEA Family Permit. Following A’s request, this appeal has been dealt with on the papers.
Factual Background
2. A is a citizen of Pakistan, born on 18 February 1999. A applied for an EEA Family Permit to join his paternal uncle Muhammad Ashraf Ditta Begum, a Spanish national, in the UK. The Respondent (R) refused the application on 1 September 2020 on the basis that A had not established that he was dependent upon his EEA national relative.
3. A appealed and the appeal then came before the Judge on the papers. It is clear from para 8 of the decision that there was no Appellant’s bundle before the Judge when she decided the appeal. The Judge found that A had not established dependency and dismissed the appeal.
4. A appealed on the basis that he had in fact submitted an Appellant’s bundle in support of his appeal. A stated that he sent the bundle to IAC Manchester using track and trace and provided documentary evidence in support of this claim. The decision was therefore against the basic principles of justice as the Judge had not considered A’s bundle.
5. Judge Nightingale granted permission on 27 April 2021. A had provided prima facie evidence that a bundle had been prepared and delivered to the address given for service.
Findings
6. The Judge states in terms that there was no Appellant’s bundle before her. If A did file a bundle of relevant evidence in accordance with directions, then the decision of the Judge dismissing the appeal without considering this evidence must be procedurally unfair. The question I must resolve is whether I accept that A did in fact file such a bundle as claimed.
7. The grounds provide a Royal Mail track and trace number and assert that the bundle was delivered to IAC Manchester using the address contained on the notice. A has provided some evidence from Royal Mail. This shows that something appears to have been posted on 20 January in the Manchester area. The item with the tracking number provided in the grounds was delivered somewhere on 21 January 2021. So, A has provided evidence that something was sent somewhere by Royal Mail arriving on 21 January 2021. It is unfortunate that A did not submit clearer evidence of the delivery address.
8. A has also submitted a copy of the Appellant’s bundle. His witness statement at p4 is dated 7 January 2021. My perusal of the bundle does not indicate that any of the documents post date the claimed date of posting. Further the bundle of 86 pages does contain relevant evidence going to the issue in the appeal.
9. I also note that the directions of 8 January 2021 stated that R had 14 days to file her bundle, and A had 28 days after R’s bundle was provided or 42 days from when the notice of appeal was lodged, whichever was later, to file his bundle. If the bundle was filed on 21 January 2021, then that was in accordance with directions.
10. So, A claims that he submitted a bundle. He has provided evidence that something was delivered somewhere on 21 January 2021. He has also provided a bundle of relevant evidence that appears to have been prepared prior to the date of sending. On balance, I am satisfied that A did send the bundle to IAC Manchester and that it was received on 21 January 2021. As the Judge determined the appeal without considering A’s bundle of relevant evidence filed in accordance with directions (apparently through no fault of her own), the Judge failed to consider material evidence and the decision is procedurally unfair. The decision therefore contains an error of law and is set aside.
11. I have had regard to para 7 of the 2014 Practice Statement for the Immigration and Asylum Chamber of the Upper Tribunal. As A was effectively denied a fair hearing, it is appropriate to remit the appeal to the First-tier Tribunal with no findings preserved for a fresh hearing.
Notice of Decision
The determination of the First-tier Tribunal contains a material error of law and is set aside.
The appeal is remitted to the First-tier Tribunal sitting at Manchester to be considered afresh (de novo) by a judge other than First-tier Tribunal Judge Birrell.
Signed Date 7 April 2022
Deputy Upper Tribunal Judge Sills