Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30410/2015
IA/30413/2015
IA/30414/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

sergio norena
olga sanchez
matias gomez
(anonymity direction not made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr F Junior Legal Representative with Lawland Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
DECISION AND REASONS
1. The appellants in this case are challenging a decision of the First-tier Tribunal to dismiss their appeals against the decision of the Secretary of State refusing them a residence card to which they claim to be entitled as the relatives of an EEA national exercising treaty rights.
2. There has clearly been a regrettable error in this case.
3. The appellants’ solicitors and the Secretary of State were told in May 2016 that the hearing of the appeal would take place in September. In August the appellants’ representatives wrote to the First-tier Tribunal stating that the appellants did not want an oral hearing but wanted the case decided on the papers and specifically asked the Tribunal to have the case decided on the papers and to issue directions appropriate for a paper hearing. For reasons that are not at all clear there was no answer to that letter.
4. I see no proper basis for criticising the judge for dismissing the appeals. If there is any criticism to be made it is that there was a procedural irregularity amounting to an error of law because the case continued without there being a decision on the application for further directions pertinent to a paper hearing.
5. While in some ways difficulty raises a simple point it is one I find quite intriguing. Clearly it is unsatisfactory that the First-tier Tribunal did not respond to the letter. It is also puzzling that the appellants’ solicitors, knowing that there had been no satisfactory or any response to that letter, decided not to attend the hearing. They really ought to have gone. They knew when the hearing was going to take place and they knew they had had no answer to their request for some other kind of hearing. This is not an error of law in any shape or form. It is an error by the appellants’ solicitors. They did not attend the hearing when they should have done. I am not persuaded that I have any proper basis for interfering with the decision complained of.
6. I do, of course, have in my mind that this is an EEA case. There is no question of any imminent removal and it is open to the applicants to make a fresh application. They have produced considerably more evidence than was available when the First-tier Tribunal made its decision. I assume this is evidence that has not been disclosed to the Secretary of State. It probably should have been disclosed to the Secretary of State in order to support the application.
7. The difficulty here seems to me to be that the appellants went about their case in the wrong way. They did not prepare it properly and then just assumed that the Tribunal would acquiesce in a request for further directions for a paper hearing.
8. I am not persuaded there is any error of law. I dismiss the appeal against the First-tier Tribunal’s decision for the above reasons.
9. However, it is very important that I add something at this point. There has been no finding of facts based on a meaningful analysis of the available evidence by the First-tier Tribunal, that is the evidence on which the appellants wanted to rely. It would therefore be quite wrong, if there is a further application, for the Secretary of State or any other decision maker to give any weight to the findings of the First-tier Tribunal in this case because that was made on an incomplete analysis of the evidence on which the appellants wanted to rely.
10. There is a further point here. The second appellant is not entitled to an appeal because her case is one based on derivative rights. I go this far: I think that is right. I do not have to determine the point because I have already dismissed the appeal against the First-tier Tribunal’s decision for other reasons and I see no need to create further complications. However it seems to me there is no answer to that point and it is something the appellants’ representatives might want to think about carefully before they decide what to do next. Of course, the fact that a decision on an application is not appealable is no reason whatsoever not to make the application.
11. It follows therefore that I am not persuaded there is any error of law by the Tribunal and I dismiss the appeal.

Notice of Decision
The appeals are dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 7 March 2017