Tribunal decisions

The decision

IAC-CH-AP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26068/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 11 December 2013
On 19 December 2013

Before

upper tribunal judge POOLE

Between

harris prempeh agyemang
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Miah of Counsel
For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS
1. For the purposes of this determination the appellant is a male citizen of Ghana born 6 March 1961. However the appellant’s nationality may well be in issue. The appellant made an application for a registration certificate as confirmation of right of residence as an EEA national. His application was refused by the respondent for reasons set out in a refusal letter dated 12 June 2013. For reasons contained in that letter it was considered that the appellant was not a jobseeker. The appellant appealed that decision and his appeal came before Judge of the First-tier Tribunal Turquet sitting at Hatton Cross on 10 October 2013. The appellant and the respondent were both represented.
2. In a determination dated 23 October 2013 the judge found that the appellant was not an EEA national but was Ghanaian. Accordingly the appeal was dismissed. The appellant sought leave to appeal based on the contention that the respondent had not challenged the appellant’s nationality and the appellant had not been given an opportunity to address that issue.
3. In a decision dated 7 November 2013 a Judge of the Upper Tribunal sitting in the First-tier Tribunal granted leave to appeal and in doing so set out as follows:
“2. It is arguable as asserted in the grounds that the Judge erred in finding that the appellant was not an EEA national when that was not an issue raised by the Respondent or put to the Appellant at the hearing. The issue at the hearing appears to be whether he was a qualifying person. The Judge made no finding on that.
3. If an error of law is found then of course the Appellant is now on notice that his nationality needs to be established.”
4. In a written response dated 21 November 2013 and filed under Rule 24, the respondent indicates that she does not oppose the appellant’s application as it was wrong for the First-tier Tribunal Judge to raise an issue without giving him the opportunity to address that point.
5. Hence the matter comes before me in the Upper Tribunal.
6. Mr Deller, on behalf of the respondent, indicated agreement with the Rule 24 response and Mr Miah relied upon the grounds. I indicated that I considered there was a clear error of law contained within the determination and that the judge had not adjudicated upon the issue before her and had made no findings. She had however dismissed the appeal upon the basis of an issue not previously taken by the respondent of which the appellant had no notice. As a result, the determination and decision fall to be set aside which I now do.
7. A discussion then took place as to what should now happen with the appeal. Clearly, the issues before the First-tier Tribunal had not been adjudicated upon. No findings had been made. It was therefore appropriate to remit the case to be heard de novo before the First-tier Tribunal.
8. Mr Deller indicated that he had had a conversation with Mr Miah who had indicated to him that whilst it was accepted that the appellant was a Ghanaian national, he was covered by a “convention” which would mean he could succeed in his original application. In turn Mr Deller had conducted some investigation and was of the view that the United Kingdom was not a party to that convention. However, details were not available to enable a decision to be taken as to whether or not the Convention did assist the appellant.
9. Clearly, if the appellant is to succeed, he must show that he is an EEA national or that he is covered by some Convention or policy which extends to Ghanaian nationals.
10. I also take the view that the First-tier Tribunal Judge will have to be mindful of the definition of a jobseeker as it is arguable that the respondent’s original decision was flawed because it refers to part of the definition of “worker” rather than “jobseeker”. An added difficulty is that there is an indication from the papers that the appellant is now a student and may therefore neither be a jobseeker nor a worker. These are matters that will need resolution.
11. In any event, my decision is that the decision of First-tier Tribunal Judge Turquet contained a material error of law and must be set aside. The appeal is remitted back to the First-tier Tribunal, no findings having been made by that Tribunal on the issues that were outstanding at the time. In so remitting I have taken into account paragraph 7.2 of the Senior President’s Practice Statement.

Signed Date

Upper Tribunal Judge Poole