Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08767/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st September 2016
On 5th September 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Andra Zoltan Banati
(ANONYMITY DIRECTION Not MADE)
Respondent

Representation:
For the Appellant: Mr Avery, a Senior Home Office Presenting Officer
For the Respondent: No appearance by or on behalf of the respondent

DECISION AND REASONS
1. The appellant in this appeal is the Secretary of State for the Home Department and to avoid confusion I shall refer to her as being, "the claimant".
2. The respondent is a 35 year old Hungarian national who made application to the claimant for admission to the United Kingdom.
3 On 15th May, 2015, the claimant refused the respondent's application which led to the respondent purporting to appeal the decision. The immigration decision was made under Regulation 19 of the Immigration (European Economic Area) Regulations 2006 (the Regulations). The claimant said this in refusing the application:
"You have sought admission to the United Kingdom under EC law in accordance with Regulation 11 of the Immigration (European Economic Area) Regulations 2006 on the ground that you are a Hungarian national. However I am satisfied that your exclusion is justified on serious grounds of public policy.
More specifically, on 23rd February, 2010 you were convicted of fraud offences in Hungary and sentenced there to ten months in prison; on 7th March, 2012 you were convicted of fraud offences and sentenced in Hungary to one year and four months in prison; on 24th September, 2012 you were again convicted of fraud offences in Hungary where you were sentenced to two years' imprisonment suspended for five years.
Furthermore, in December, 2014 you were arrested in the UK for shoplifting and fraud offences. Not only therefore is your exclusion from the United Kingdom justified due to having received prison sentences of over two years, but also on the basis of your propensity to reoffend.
I therefore refuse your admission to enter the United Kingdom in accordance with Regulation 19."
4. The respondent's representative gave Notice of Appeal and the appeal came for hearing on the papers in Belfast before First-tier Tribunal Judge S Gillespie in February, 2016.
5. The judge purported to find that the decision of the claimant was not in accordance with the law and allowed the appeal, to the extent that, "the Secretary of State should if she deems it appropriate make an immigration decision which carries an in country right of appeal". The judge reached that conclusion having already concluded that the Secretary of State was entitled to issue an immigration decision to the effect that the respondent's exclusion from the United Kingdom was justified.
6. Before me today I have no appearance by or on behalf of the respondent. Instead I have received a copy of a facsimile bearing the appeal number, addressed "Honourable Court!" and saying:
"Today's hearing can not go because I did not get a paper which I can enter the country. My lawyer will be there! I am confident that the laws are complied with and that the illegal status terminated!
[Signed]
Andras Zoltan Banati".
7. I was satisfied that the respondent had received Notice of the Hearing. No representatives have made themselves aware to the Tribunal. The matter was listed for hearing at 10.00 am. At 13.45 there was still no appearance on the respondent's behalf and I concluded that in the circumstances I would proceed to hear the appeal.
8. For the claimant, Mr Avery suggested that the proper challenge to the Secretary of State's decision would have been by way of judicial review rather than an appeal to the First Tier Tribunal, which had no jurisdiction to hear the appeal. However, the respondent's representatives did not proceed with a judicial review, but instead purported to appeal the decision.
9 The judge found that the decision of the claimant was not in accordance with the law because, he said, the respondent was entitled to an in country right of appeal under Regulation 27(2) of the Regulations. At the time of the hearing, the respondent was out of country. He made an out of country appeal, but the judge did not consider that. Instead he purported to find that the decision of the claimant was wrong because she had denied the respondent an in country right of appeal.
10. Regulation 27(1) of the Regulations provides that subject to paragraphs (2) and (3), a person may not appeal, under Regulation 26, whilst he is in the United Kingdom against an EEA decision (a) to refuse to admit him to the United Kingdom, which is the case in this appeal, and subparagraph (2) says that paragraphs (1)(a) to (aa) do not apply where the person is in the United Kingdom, but of course this respondent was not in the United Kingdom. He was out of country and he only had an out of country right of appeal.
11. The respondent has an out of country right of appeal which he has sought to exercise. I set aside the judge's determination. I remit this appeal to the First-tier Tribunal. It remains for the respondent's out of country appeal to be determined by the First-tier Tribunal. It should be determined by a judge other than Judge S Gillespie.

Notice of Decision
The determination is set aside. The appeal (which is an out of country appeal) is remitted to the First Tier Tribunal for hearing afresh by a judge other than First Tier Tribunal Judge S. Gillespie.

Upper Tribunal Judge Chalkley