VA176832013

This is an appeal against the decision of Judge of the First-tier Tribunal O'Garro, who in a determination promulgated on 21 August 2014, dismissed the appellant's appeal against the respondent's refusal to grant him entry clearance as a family visitor. The initial application to enter the United Kingdom as a family visitor was made as long ago as 25 April 2011. That application was refused but was successfully appealed to the First-tier Tribunal on 12 February 2013.

Having carefully considered this bundle, and having regard to the Hatton Cross date stamp, I am entirely satisfied that, through no fault of her own, the First-tier Tribunal did not have before her the evidence identified in the grounds of appeal, specifically, the 58 page bundle.

Following the authorities of MM (Unfairness: E&R) Sudan [2014] UKUT 105 (IAC ) I am satisfied that the First-tier Tribunal made a procedural error in terms of the availability of evidence. The First-tier Judge made a mistake of fact as to the availability of evidence when in fact it is clear that that evidence was available. I again emphasise that the First-tier Tribunal Judge was in no way at fault in failing to consider evidence that was not made available to her and her determination was otherwise unimpeachable.

The failure to put the appellant's bundle before the Judge has however rendered her decision unsafe. In circumstances where the appellant was effectively deprived of a fair hearing because the large bundle of documents in support of his appeal were not made available to the judge, I am satisfied this is an appropriate case to be remitted back to the First-tier Tribunal to enable full consideration to be given to the documents he has produced and to any oral evidence that may come from witnesses.

The appeal is remitted back to the First-tier Tribunal a Judge other than Judge O'Garro for full consideration to be given to the documents produced by the appellant and to any supporting oral evidence.