Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34182/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 5th December 2016
On 10th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

bernard kpabitey tetteh
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Ume-Ezeoke of Counsel
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. In a renewed application, Upper Tribunal Judge Plimmer gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Obhi who dismissed the appeal on the papers against the decision of the respondent to refuse a residence card to the appellant as the family member of an EEA national in accordance with the provisions of the Immigration (European Economic Area) Regulations 2006.
2. Judge Plimmer granted permission on the basis that it was arguable that the appellant had not received directions issued on 27th November 2015 requiring him to file documents by 29th December 2015 and so documents subsequently filed after the date of hearing should have been taken into consideration.
3. At the initial hearing of this matter in the Upper Tribunal before me on 7th November 2016 (at which the respondent's representative was in attendance but not the appellant) I reached the initial view that the decision of the First-tier Judge did not show an error on a point of law. However, when later studying the information on the Tribunal file, I reached a revised view on the basis that it was possible an administrative error had occurred within the Tribunal which meant that the appellant had not received the directions dated 27th November 2015 requiring him to file his evidence by 29th December 2015 in readiness for the appeal to be decided on the papers. That was because the Tribunal file contains a partial copy of a notice of appeal suggesting that the appellant had elected to have his case decided on the papers but a full copy of a notice of appeal in a different part of the file indicated the opposite. The complete notice of appeal indicated a request for an oral hearing with the attendance of the appellant and witnesses and a representative. Thus, even if the Tribunal notice and directions of 27th November 2015 had been sent to the appellant, an erroneous state of affairs would have been indicated. Having regard to the appellant's brief grounds of application suggesting that he should have received a bundle of documents from the respondent and had not received any further notice of the progress of his appeal, I concluded that the appellant's claims had substance and the matter should not have been dealt with on the papers on 1st February 2016.
4. Following my discovery of the above matters, I arranged for a direction to be sent to the parties for the resumption of the error of law hearing which then took place before me on 5th December 2016. At that hearing Mr Bates made no objection to my proposal to remit the matter for oral hearing afresh before the First-tier Tribunal because of the administrative error which I had identified and because the appellant had thereby been deprived of a fair hearing. That was because of the failure of the First-tier Tribunal to take into consideration his bundle of documents submitted to the Tribunal on 29th January 2016. Mr Ume-Ezeoke also had no objection to my proposal.

Notice of Decision
The decision of the First-tier Tribunal shows an error on a point of law and is set aside. The appeal is to be re-made afresh by the First-tier Tribunal.

DIRECTIONS
1. The remitted hearing will take place at the Stoke Hearing Centre on a date to be specified by the Resident Judge.
2. No interpreter will be provided for the hearing unless representatives indicate to the contrary.
3. The time estimate for the hearing is two hours.
4. The hearing should not be before Judge Obhi.

Signed Date

Deputy Upper Tribunal Judge Garratt