Tribunal decisions

The decision

IAC-AH-KEW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19622/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2016
On 29th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MISS ADJOA WILLIAMS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ghana born on 6th November 1984. The Appellant applied on 24th October 2014 for a permanent residence card as a confirmation of right to reside in the United Kingdom. That application was refused by Notice of Refusal dated 12th May 2015. The Appellant appealed and the appeal came before Immigration Judge Hussain hearing the appeal on the papers at Birmingham on 29th April 2016. In a decision and reasons promulgated on 29th April 2016 the Appellant's appeal was refused under the Immigration (EEA) Regulations 2006.
2. On 6th May 2016 the Appellant lodged Grounds of Appeal to the Upper Tribunal. Those grounds recited that on 16th March 2016 the Appellant's newly instructed legal representatives, GK Associates, had sent an email to Customer Services at the Immigration Appeal Tribunal informing them that they wished for the paper appeal to be vacated and for the matter to proceed by way of oral hearing. A response was received by them but on 29th April 2016 the Notice of Decision was received indicating that the decision had been made on the papers.
3. It is against that basis that the Appellant lodged Grounds of Appeal to the Upper Tribunal.
4. On 1st November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response noted that subject to any evidential issues relating to the paragraphs involved or relating to payment of fees the Secretary of State did not oppose the Appellant's application for permission to appeal and invited the Tribunal to find an error of law on the basis of either procedural impropriety or in fairness and thereafter to remit the matter back to the First-tier Tribunal for a de novo hearing.
5. It is on that basis that the appeal comes before me to decide whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant does not attend. The Secretary of State appears by her Home Office Presenting Officer Mr Armstrong.
Submissions/Discussion
6. Mr Armstrong reiterates the content of the Rule 24 reply. He indicates that in the circumstances the Secretary of State accedes to the wishes of the Appellant and is prepared for the court providing it finds an error of law to remit the matter back to the First-tier.
The Law
7. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
8. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
9. In this matter the Appellant originally asked that her appeal be dealt with by way of an oral hearing. That was reiterated on more than one occasion by her instructed solicitors. Despite that the Tribunal Service brought the matter before the Tribunal on the basis that it was to be heard and dealt with on the papers. It is a fundamental principle of English law that a person has a right to have his/her case properly heard. Mr Armstrong has quite properly conceded that there is a material error of law and that this case should have been dealt with at an oral hearing and therefore there is procedural impropriety and potential unfairness to the Appellant. That is not to say that the outcome of the appeal may or may not be the same as that reached by Judge Hussain.
10. In such circumstances the correct approach is to find that there is a material error of law in the decision of the First-tier Tribunal and to set aside that decision and to remit the matter back to the First-tier and to give directions for the re-hearing of this appeal.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law. The decision of the First-tier Tribunal Judge is set aside. The matter is re-made remitting the matter back to the First-tier Tribunal for re-hearing. The following directions will apply.
(1) The appeal is remitted back to the First-tier Tribunal to be heard on the first available date 28 days hence at Taylor House with an ELH of two hours.
(2) That none of the findings of fact of the First-tier Tribunal Judge are to stand.
(3) That the appeal be before any First-tier Tribunal Judge other than Immigration Judge Hussain.
(4) That there be leave to either party to file and serve an up-to-date bundle of subjective and/or objective evidence upon which they seek to rely at least seven days prior to the restored hearing.
(5) That in the event of the Appellant requiring an interpreter then her instructed solicitors must notify the Tribunal at least fourteen days prior to the restored hearing.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris