Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24960/2015

THE IMMIGRATION ACTS

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

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

Ms akosua kumah
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs H Gore of Counsel instructed by R Spio & Co Solicitors
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 28 June 1981. Setting out the immigration history from the point of view of the Tribunal is both confusing and confused and in fact has given rise to this appeal.
2. Application was made for leave to remain in the United Kingdom on the basis of a marriage to an EEA national. On 14th May 2015 there was an interview. (It is right to say that there were proceedings even before then, before Judge Fox, but they are not material to the matter before me). That same day i.e. 14 May 2015, a decision was made to refuse the application. On 18th May 2015 the Appellant appealed and submitted her grounds. Included in those grounds was the assertion that when interviewed, the interviewing officer had confused the Appellant's file with that of another person. That assertion was supported by the fact that reference was being made in the refusal to a German national and to a Ghanaian passport issued in London when in fact it has now been clearly established that the passport relating to the Appellant was issued in Accra.
3. On 24th June 2015 the Secretary of State by letter wrote to the Appellant's solicitors in these terms:
"On 7th January 2015 your client... applied for a residence card. Your client was issued with refusal papers dated 14th May 2015. Please note that these papers have now been withdrawn. Please find enclosed revised notices regarding the decision to refuse your client's application."
4. It is of note that the Secretary of State did not expressly say that the decision had been withdrawn but she did say that she was withdrawing everything in relation to that particular appeal in using the term "these papers".
5. The fresh decision accompanied that letter but if the Secretary of State was at some point to meet an appeal then she would need to reserve any papers on which she was going to rely so that the Appellant knew the case that she was to meet.
6. Not content still with the decision of the Secretary of State to refuse the application, that being the one of 24th June 2015, the Appellant appealed to the First-tier Tribunal. For some reason reference was made to appeal number IA/18767/2015 which was borne out of the decision which was withdrawn by letter of 24th June 2015. What is more is that some of the evidence which had properly been served by the Secretary of State upon the Appellant whilst that appeal was live had found its way into the documents before the judge without properly having been served by the Secretary of State; here I refer in particular to the record of interview of the Appellant which interestingly was not duly signed by the Appellant nor is it dated. Be that as it may no point is taken with that letter.
7. At the hearing before Judge Housego, when sitting in the First-tier Tribunal at Hatton Cross on 4th January 2016, Ms Gore took the point that the record of interview had not been duly served in the appeal IA/24960/2015 and that the appeal IA/18767/2015 no longer existed. It was submitted therefore that the judge should not be dealing with evidence in relation to that particular appeal.
8. There seems to be no dispute that the point was taken nor that the judge invited Ms Gore to say whether or not she was making an application to adjourn but in fact as Ms Gore points out to me, it wasn't for her to make the application, it was for the Secretary of State because it was the Secretary of State who wanted to rely on this evidence which had not properly been served. If she, the Secretary of State, wanted to rely on it the proper course was to explain the circumstances, seek leave, and then for the judge to establish whether or not, and to what extent, if at all, the Appellant was disadvantaged or prejudiced by the record of interview coming into evidence. As it was Ms Gore tells me, and I accept, she was wholly disadvantaged because it was her expectation that the interview was not being relied upon for reasons that had been set out in earlier grounds and that proper instructions from her client had not been taken. The judge has clearly given weight to matters which arise in that interview. The substance of the matter which comes before me with the permission of Upper Tribunal Judge Perkins, given on 1st September 2016, is the procedural irregularity which has given rise to unfairness.
9. Once all matters were aired and a number of procedural errors were identified in the course of conversations had between the parties, which I have to say were conducted in a very amicable way, and I am grateful to both of them for the assistance that they have given to me in this matter, a resolution emerged which appears to be fair to all sides.
10. The decision of Judge Housego contains a material error of law in that the record of interview was given due weight in circumstances in which the Appellant was disadvantaged. I need say no more because Ms Isherwood accepts that.
11. The issue for me then is whether to re-make or remit the case. This matter has already had a resumed hearing before me. The Secretary of State wishes to consider her position but in fact this is one of those cases in which the Appellant in my judgment has been deprived of a proper and fair hearing in the First-tier Tribunal. (When I make reference to the Secretary of State wanting to consider her position that is in relation to whether or not to serve the record of interview. What she wishes to do in respect to the merits of the case of course is entirely a matter for her).
12. For the avoidance of doubt, by consent, this matter will be remitted to the First-tier Tribunal with no preserved findings. I make plain that appeal number IA/18767/2015 stands withdrawn and that any papers served under it are not before the Tribunal. If the Secretary of State wishes to rely on any document or documents that were relied upon in that appeal she will need to re-serve them in this appeal IA/24960/2015. That applies to the interview. It is a matter for the Secretary of State to consider the extent to which, if at all, there are any errors which have crept into that record of interview consequent upon the real risk, which I find there is, that there was another file open at the time when the Appellant was first interviewed.
13. Provided the Secretary of State is content to proceed on the basis that there are no errors in that record of interview, that being a matter for her, then she could rely on it and if there are it will be for the Appellant's representatives to take any points which arise at the remitted hearing. If, on the other hand the Secretary of State wishes to re-interview the Appellant I would expect the Appellant to co-operate and the Tribunal to be informed if that is to cause any delays in the matter being re-heard in the First-tier Tribunal.

Direction
14. The matter will be remitted to Hatton Cross to be heard by a judge other than Judge Housego.
15. There shall be a Twi interpreter.
16. This matter shall be listed for three hours.

Decision
17. The Tribunal has no jurisdiction in Appeal number IA/18767/2015. That matter is not before the Upper Tribunal and was withdrawn.
18. As to appeal number IA/24960/2015 there was a material error of law. The decision is set aside to be re-heard in the First-tier Tribunal in accordance with the directions contained herein.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker