IA/01131/2016

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The decision


IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01131/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 29 November 2016



Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL


Between

KAZIM TOSUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Haywood, Counsel, instructed by Morgan Has Solicitors
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer


DECISION AND REASONS
1. The appellant, a national of Turkey, has permission to challenge a decision of First-tier Tribunal (FtT) Judge Mitchell dismissing his appeal refusing to grant indefinite leave to remain as a businessman under the Turkey-European Community Association Agreement (ECAA).
2. As agreed upon by both parties the FtT judge fell into clear legal error in stating that he would not have regard to a number of document produced for the hearing by the appellant as he considered he was statutorily excluded from doing so by s.85(4) of the NIAA 2002 as amended. That provision only applies to points-based appeals. The appellant was not a points-based appeal. Nor was it one governed by Immigration Rules that specify as a mandatory requirement that certain specific documents must be submitted with the application. Whilst the judge did appear in one or two places to consider the further documents it is clear that he had already set his mind against considering them as a whole.

Notice of Decision
3. For the above reasons, I conclude that the judge materially erred in law and his decision must be set aside.
4. The case falls within the ambit of the Senior President's Practice Statement on remittals and according I remit the case to be heard by the First-tier Tribunal, before any judge other than Judge Mitchell.
No anonymity direction is made.


Signed Date


Dr H H Storey
Judge of the Upper Tribunal