IA/21666 /2015

• Status of case: Unreported
• Hearing date: 16 Jan 2017
• Promulgation date: 18 Jan 2017
• Publication date: 29 Jun 2021
• Last updated on: 29 Jun 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21666 /2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 January 2017
On 18 January 2017

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

DIeter kpexor
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

Representation
For the Appellant: No appearance
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
1. Although the appeal has been brought by the Secretary of State, I continue to refer to the parties as they were before the First-tier Tribunal.
2. The appellant is a national of Ghana born on 14 September 1993. His appeal against the decision of the respondent to refuse him a residence card under the EEA Regulations was allowed by First-tier Tribunal Judge Majid by way of a determination promulgated on 21 July 2016.
3. The respondent refused the application because she was not satisfied that the appellant's marriage was genuine. She relied on a report by immigration officers who visited the alleged marital home only to find a tenant who had resided there for two years and who denied all knowledge of the appellant and his spouse.
4. The judge heard evidence from the appellant although this has not been summarised in his determination so it is not known what is said. No record of proceedings is on the Tribunal file. The judge allowed the appeal seemingly on the basis of "compassion" and his "judicial discretion".
5. The respondent obtained leave on the basis that the reasons for the decision were unclear.
6. The Hearing
7. The appellant was not in attendance at the hearing before me on 16 January 2017. A letter dated 5 January 2017 was received from him in which he states: "I wish to inform the court that I will not be attending the above appeal hearing. I have decided to withdraw my application and voluntarily exit the UK due to personal circumstances. I have contacted the Home Office and have commenced the voluntary exit process".
8. I heard submissions from Mr Jarvis who asked that I decline to give permission for the withdrawal given the circumstances of the case and the failings of the determination. He informed me that the appellant had not yet left and the matter was still under process. I formally reserved my determination although indicating that I would set aside the decision.
9. Conclusions
10. There can be only one possible outcome in this case and that is to set aside the determination of Judge Majid for being wholly inadequate both in logic and in reasoning. The judge makes no findings at all on material matters such as the marriage or cohabitation and appears to allow the appeal because of his compassion for the appellant who is described as "outraged". There is no engagement with the refusal letter and no application of the law to the facts of the case. Indeed, there is an utter failure to assess the case. The decision is fatally flawed for these reasons and is set aside in its entirety.
11. Decision
12. The judge made errors of law and the decision is set aside. However, as the appellant has now withdrawn his appeal against the respondent's decision, there is no longer any valid appeal to be determined.

Signed





Upper Tribunal Judge Keki?

Date: 16 January 2017