EA/1255/2022

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The decision


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005273
First-tier Tribunal No: EA/1255/2022


THE IMMIGRATION ACTS


Decision & Reasons Issued:
On the 29 March 2023


Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE SKINNER


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

WINNIE EBAMU FONKENG
(NO ANONYMITY ORDER MADE)
Respondent


Representation:
For the Appellant: Ms Everett, Senior Home Office Presenting Officer
For the Respondent: Mr Mannan, counsel

Heard at Field House on 3 March 2023

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Lucas (“the Judge”) promulgated on 8 August 2022 (“the Decision”). Permission to appeal was granted by First-tier Tribunal Judge Frantzis on 4 November 2022.
2. By the Decision the Judge allowed Mrs Fonkeng’s appeal against the Secretary of State’s refusal of her application under Appendix EU of the Immigration Rules, but only to the extent that Secretary of State was directed to reconsider the application in light of the submissions as to the requirements of various aspects of Appendix EU.
3. In her grounds of appeal dated 18 August 2022, the Secretary of State advanced two grounds as to why this approach was vitiated by error of law. These were in summary that:
a. First, the Judge had no power to remit the matter back to the Secretary of State for further consideration; and
b. Second, the Judge had failed to determine the issues before him, namely whether Mrs Fonkeng was eligible under the relevant rules.
4. It is not necessary to go further into the background to this appeal because at the hearing before us, Mr Mannon, on behalf of Mrs Fonkeng accepted that the grounds of appeal were made out and that the decision should be set aside. For the avoidance of doubt, we consider this concession to be well made. The First-tier Tribunal is required by Regulation 10 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 to determine, inter alia, any matter raised as a ground of appeal. It was therefore not open to the Judge to decide not to decide these issues and instead to direct the Secretary of State in effect to ‘have another go’.
5. Given that there has been no real consideration by the First-tier Tribunal of the requisite issues, and no fact finding undertaken, the parties agreed that it was appropriate for the matter to be re-heard in the First-tier Tribunal. We agree. The Appellant has to all intents and purposes not yet had a judicial determination by the First-tier Tribunal and should not in our view be deprived of that by virtue of the Judge’s failure to comply with his statutory duty under Regulation 10.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside with no findings of fact preserved.  It is remitted to the First-tier Tribunal to be heard by a different judge.
No anonymity direction is made


Paul Skinner

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 March 2023