Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26920/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Olanike Olubunmi Abidoye
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Mr C Amgbah (Legal Representative from UK Law)
For the Respondent: Mr S Staunton (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Herbert sitting at Taylor House on 18 August 2016 dismissing the appeal of the appellant against the decision of the respondent to refuse her an EEA residence card.
2. The appellant did not appear before the First-tier Tribunal.
3. The First-tier Tribunal Judge, correctly, satisfied himself that there had been good service but says in the decision that he had made enquiries and the papers show that notice of hearing had been “correctly served … on the appellant’s representatives”. The judge does not say that there was evidence that the notice had been served on the appellant. The appellant says that she had no notice of the hearing and she found out about it afterwards when her representatives told her. She is no longer represented by that firm.
4. Something has gone wrong in this case because there is no paperwork on my file to confirm that notice of hearing was ever sent to anybody. This is a surprising omission and adds to the picture that support my finding that there has been an administrative error which amounts to an error of law.
5. I therefore set aside the decision of the First-tier Tribunal and I now have to decide how to correct the error.
6. The law has changed recently following the decision of the Court of Appeal in the case of Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 which decided that the leading case for the Tribunal known conveniently as Kareem [2014] UKUT 24 (IAC) was decided wrongly. It follows that the whole approach to cases such as this has to change.
7. The appellant was not in a position to go ahead today. Although considerable documentation has been served on the Secretary of State it was apparent there was a gap in the available evidence because that documentation was not sufficient or did not appear to be sufficient to prove that her partner (I use the word “partner” deliberately because it is imprecise) had been exercising treaty rights at the material time. Mr Amgbah said, and I accept, that he had not had sight of the refusal letter so he did not know what had to be proved. This again adds to the picture that something unsatisfactory has taken place in the preparation of this case.
8. Mr Staunton was quick to accept that in these circumstances that neither the appellant nor Mr Amgbah should be criticised and the appropriate course is to remit the case to the First-tier Tribunal which will give the appellant time to get her documentation in proper order and proceed to an appeal for which she is properly prepared.
9. I therefore set aside the decision of the First-tier Tribunal and direct the case be heard again in the First-tier Tribunal for the reasons I have outlined above.
Decision
Appeal allowed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 24 April 2017