Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA217682015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 June 2016
On 15 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

mr uche ifeanyi etuonu
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr I Ike (Solicitor), Moorhouse Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria born on 9 January 1982. In a decision, on the papers, promulgated on 29 October 2015, Judge AMS Green, Judge of the First-tier Tribunal, dismissed the appellant's appeal under the Immigration (EEA) Regulations 2006, which had been made on the basis of the appellant's marriage to Jessica Sofia Do Rosario Martins, a Portuguese citizen said to be exercising treaty rights in the UK. The respondent had refused the appellant's application for a residence card (made on 19 October 2014) on 28 May 2015.
2. Acting Resident Immigration Judge Zucker granted permission to appeal to the Upper Tribunal on 10 May 2016 and the appeal came before me.
Error of Law
3. The issue before me was a narrow one. The grounds of appeal to the Upper Tribunal submit that the appellant's solicitors wrote to the First-tier Tribunal by letter dated 27 July 2015 requesting that the "paper" hearing be converted to an oral hearing and it was argued that this letter was not acted upon by the Tribunal.
4. I had before me a copy of the letter dated 27 July 2015, which appears in the form of a fax confirmation sheet. I was satisfied that the fax number shown at the top of the fax confirmation sheet matched the fax number shown on the Immigration Directions Notice issued to the appellant on 6 July 2015, namely fax number 08707394164, which was the given fax number for the Tribunal. I am satisfied on balance therefore that the appellant properly notified the Tribunal of the request for an oral hearing. Mr Duffy did not dispute this.
5. The fact that Judge of the First-tier Tribunal Green was not aware of that application through no fault of his own does not mitigate the unfairness to the appellant who I am satisfied had clearly requested an oral hearing. Although Mr Duffy initially submitted, with no great force, that there was a gap of some three months between that application and the determination of First-tier Tribunal Judge Green at the end of October 2015 when it might be expected that the appellant's representatives would have contacted the Tribunal (and/or have attempted to pay the fee for the oral hearing) that argument has little weight. I accept that the appellant's representatives may have been waiting to be contacted by the First-tier Tribunal and given the vagaries of listing and the potential delays in such listing, that the appellant's solicitors may have believed there was nothing untoward in the fact that they were not contacted for some three months after the request for an oral hearing.
6. In reaching my decision that there was a material error of law I have considered in Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC). Although this concerned the issue of adjournments, the applicable principle is that the crucial question is not one of fault or whether the First-tier Judge was reasonable in proceeding, but whether the affected party has been deprived of his right to a fair hearing.
7. I am therefore satisfied that there is a material error of law such that the decision of the First-tier Tribunal must be set aside. The appellant has not had an opportunity to give oral evidence and given the issues in this appeal which include questions in relation to the genuineness of the appellant's marriage and as to whether or not the EEA national was exercising her treaty rights, I am satisfied that the appeal should be remitted to the First-tier Tribunal, to be heard by any judge other than Judge Green. No findings are preserved.

No anonymity direction is made as there were no issues identified that might require such an order.

Signed Date: 13 June 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

There was no fee application made before me and I make no fee award.

Signed Date: 13 June 2016

Deputy Upper Tribunal Judge Hutchinson