OA/08855/2015

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08855/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 4 October 2016




Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

luis enmanuel severino diaz
(anonymity directioN NOt MADE)

Appellant
and

THE SECRATRAY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms P Young of Counsel instructed by Hodders Law
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal from a decision of First-tier Tribunal Judge Clarke promulgated on 17 March 2016. The appellant, who has now obtained his majority, is a citizen of the Dominican Republic. He sought permission to enter the United Kingdom under the provisions of paragraph 297 of the Immigration Rules as the child of a relevant person settled in the United Kingdom. The findings and conclusions of the First-tier Tribunal Judge repeatedly refer to the absence or paucity of evidence. It is a case that was determined on the papers without representation on either side.

2. The grounds of appeal dealt primarily with procedural unfairness and in particular the failure on the part of the Secretary of State to lodge relevant documents. Reference has been made in the skeleton argument which I have seen this morning to the case of Cvetkovs (visa - no file produced - directions) Latvia [2011] UKUT 212 (IAC). When the matter was called on today I made the file available to both Mr Kandola who acts for the Secretary of State and Ms Young who acts for the appellant. It was immediately plain that there was little or no material in the file and accordingly it was not open to the judge to come to the conclusions which she did.

3. Mr Kandola does not resist the setting aside of the decision of the First-tier Tribunal on the basis of this error of law. In those circumstances I therefore allow this appeal. I set aside the decision of the First-tier Tribunal and I remit the matter for redetermination.

4. In order to facilitate a prompt resolution of this matter by the First-tier Tribunal I require the Secretary of State to use best endeavours to file and serve copies of all documents lodged with the original application. In addition, there are various determinations in procedural history of this matter which have been brought to my attention by Mr Kandola. These are to be copied today, with one copy given to the appellant's representative and the other lodged on the court file for use when the First-tier Tribunal hears the matter afresh.

Notice of Decision

The appeal is allowed and the decision of the First-tier Tribunal set aside. The matter is remitted to be heard afresh by a First-tier Tribunal Judge other than Judge Clarke.

No anonymity direction is made.



Signed Mark Hill Date 30 September 2016

Deputy Upper Tribunal Judge Hill QC