Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13887/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 16th July 2014
On 17th July 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE LINDSLEY

Between

MR JOSEPH ISITEKHALE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss K Anifowoshe, Counsel, instructed by Chancery CS Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The appellant is a citizen of Nigeria born on 13th November 1975. He met Ms Tania Casilda Nunes Ferrera Santos (a citizen of Portugal born on 16th July 1978) in Ikeja, Nigeria in 2007. They were married on 19th September 2009 in Nigeria. He came to the UK with a valid student visa on 27th September 2009. His leave in this capacity expired on 30th November 2010. On 5th September 2013 the appellant applied for an EEA residence card on the basis of his marriage. This application was refused on 13th March 2014. His appeal against the decision to refuse him a residence card was dismissed by First-tier Tribunal Judge Place in a determination on the papers promulgated on the 15th May 2014.
2. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Appleyard on 3rd June 2014 on the basis that it was arguable that the First-tier judge had erred in law in failing to consider the appellant's bundle of papers which was faxed to the Tribunal on the 6th May 2014, the day the First-tier Tribunal considered the appeal.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions
4. It was accepted that there was a procedural error of law for the First-tier Tribunal not have considered the appellant's bundle of documents. Ms Everett did not concede however that the error was material. She accepted that the evidence went to the issues at stake in the appeal but it did not really address the issue of where the appellant's wife was when the Immigration Service visited the appellant's address. There were also some possible anomalies over the addresses on the utility bills and bank statements.
5. Miss Anifowoshe argued that the documents were material. There was a declaration and a statement by the appellant's spouse that the marriage was not one of convenience. There was also a detailed statement to this affect by the appellant. The appellant's spouse had said that she had not applied for a certificate of approval to marry another man in the UK, and if there was such a thing with the respondent someone must have stolen her identity. The appellant and his spouse had provided bank statements and utility bills and a tenancy agreement showing their cohabitation.
6. After submissions I told the parties that I found there was a material error of law for the reasons set out below. The parties were in agreement that it would be appropriate to remit the matter for an oral hearing before the First-tier Tribunal which the appellant and his wife should attend.
Conclusions
7. The material in the appellant's bundle was evidence going to the issues in the appeal. In this bundle there is material from Companies in the UK website for the appellant's wife's employer which addresses the respondent's allegation that the appellant's wife did not work at the address she claimed. There is also material which goes to the issue as to whether the marriage was genuine. The appellant's wife refutes the allegation that she had applied for a certificate of approval to marry another man; both the appellant and she provide signed statements giving details of their relationship and confirming it to be genuine; and there are documents showing the cohabitation of the couple. The evidence showing official documentation going to the same address for both the appellant and his wife goes back to 2011 and is for two addresses. It is clear that the failure to consider the 64 pages of documentation in the appellant's bundle, all of which is relevant to the issues in the appeal, could have made a material difference to the outcome of the appeal and therefore was material.
Decision
8. The decision of the First-tier Tribunal involved the making of an error on a point of law.
9. The decision of the First-tier Tribunal is set aside.
10. It is appropriate to remit this matter to the First-tier Tribunal for hearing de novo in accordance with the Senior President's Practice Statement on Remittals at paragraph 7.2 as the effect of the error has been to deprive the appellant of the opportunity to put his case in full to the First-tier Tribunal.
11. The matter is listed for an oral hearing before the First-tier Tribunal at Taylor House on 4th November 2014.

Deputy Upper Tribunal Judge Lindsley
16th July 2014