Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/16222/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st December 2016
On 12 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

ms victoria amoo
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The Appellant in person
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ghana whose date of birth is recorded as 10th January 1968. On 25th April 2013 application was made on her behalf for leave to remain in the United Kingdom on human rights grounds.
2. On 4th June 2013 a decision was made to refuse the application and the Appellant appealed. Her appeal was heard by Judge of the First-tier Tribunal Andonian, sitting at Taylor House on 24th June 2016. He dismissed the appeal. What he appears not to have known was that on the very day of the hearing the Appellant was attending an appointment with her general practitioner at Cricket Green Medical Practice. She had been courteous enough to send an email to the Tribunal the previous day, 23rd June 2016. It is clear from the evidence she supplied with her Notice of Appeal that the email was acknowledged by auto response from the Tribunal.
3. The original documents are not on file but suggests to me only that there has been an administrative error and the documents have been misfiled; there is clearly evidence that the documents were received.
4. It is unfortunate that from time to time documents do get misfiled. The result is that the Appellant, who wished to attend at her own hearing did not have the opportunity to do so and did not have the opportunity to be heard.
5. For the Respondent, Ms Isherwood submits that the error, if any, was not material because the outcome would have been the same. She also points to the fact that the Appellant was in breach of Directions because no sufficient evidence had been placed by the Appellant before the Tribunal. That may be so but she lost the opportunity to make application before the judge to be allowed to be heard notwithstanding any breach. Thee evidence she may have given before the judge was capable of making a material difference. That must be so because we do not know what she was going to say. Justice must not only be done but be seen to be done and in my judgment it would be manifestly unfair to leave matters as they are.
6. In granting permission to this Tribunal in response to the Appellant's application for permission dated 9th July 2016 Judge Hollingworth observed that the judge was plainly unaware of the circumstances. It is disappointing that it did not occur to him simply to set aside the decision having regard to Rule 32 of the Tribunal Procedure (Upper Tribunal) Rules 2014 which is something that he might have done.
7. I find that there was a material error of law. The decision of the First-tier Tribunal is set aside to be re-heard afresh before any judge other than Judge Andonian. There is no reason why Judge Hollingworth should be barred from hearing this case because he did not hear any evidence from the Appellant. It is unlikely that the matter would come before him but it seems to me there is no reason to say that he will not hear it.
Decision
8. The appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal is set aside to be reheard as indicated within the body of this decision at Taylor House.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker