Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30316/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
On 19th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

MRS LINDA FAWAZ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Ahmed of Counsel
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sierra Leone whose date of birth is recorded as 10 January 1962. On 4 March 2015 she made application for a Derivative Residence Card having regard to Regulation 15A of the EEA Regulations 2006.
2. On 4 August 2015, a decision was made to refuse the application. The Appellant appealed and on 25 August 2016 her appeal was heard by Judge of the First-tier Tribunal S J Clarke sitting at Hendon Magistrates’ Court. There were a number of issues in the appeal not least the nature of the relationship between the Appellant and the person in respect of who she was she was providing care. The judge dismissed the appeal. However, it is common ground that at paragraph 4 of the Decision and Reasons a history purporting to relate to the Appellant ought not to have been in the decision at all because the dates clearly relate to someone else.
3. Not content with the Decision, by Notice dated 20th September 2016 the Appellant made application for permission to appeal to the Upper Tribunal. On 25 January 2017 Judge of the First-tier Tribunal Hollingworth granted permission. Though it does not appear that in granting permission the grant was restricted in any way the grant clearly focused on paragraph 4. Judge Hollingworth stated:
“Paragraph 4 of the decision does not relate to the Appellant. It is unclear what other papers the judge had before her or what consideration was given to the content of any such papers. In these circumstances, the Appellant being unaware of the history being referred to or the content of any such papers, an error of law has arguably arisen given the Appellant has not been cognisant of the extant of material before the judge.”
4. There were other matters raised in the grounds but before me Mr Ahmed did not pursue them further. He was right not to do so.
5. Mr Kotas for the Secretary of State invites me to find that paragraph 4 is so discrete that a pencil line can be struck through it and the remainder of the decision can be left intact. He drew my attention to the one part of the grounds in which it was said, “It is odd that it was not spotted before promulgation”. In my view that makes matters worse. This is because assuming the judge read the Decision before promulgation, she must have thought that that paragraph was correctly inserted. If it were an error on her part, and recognised as such by her, one would have expected her to remove it. As it is one simply cannot know whether there was another file or other papers before the judge at the time of making the decision. It goes to the very core of our system that justice must not only be done but must be seen to be done. In this case the Appellant reading this Decision, reasonably in my judgment, cannot feel that her appeal was fairly dealt with. In the circumstances this decision is so fundamentally flawed by what appears at paragraph 4 that the matter is to be remitted to the First-tier Tribunal for a rehearing.

Notice of Decision
The decision of the First-tier Tribunal contained a material error of law. The decision is set aside and is remitted to Taylor House for rehearing.
No anonymity direction is made.

Signed Date: 24 March 2017

Deputy Upper Tribunal Judge Zucker