IA223762014

The Appellant, a national of Nigeria, date of birth 16 May 1978, appealed against the Respondent's decision, dated 10 May 2014, to refuse a residence card with reference to Regulations 6, 7 and 8(5) of the Immigration (European Economic Area) Regulations 2006. The appeal of the Appellant was rejected by First-tier Tribunal Judge Majid (the judge) who on 6 November 2014 dismissed the appeal against the Secretary of State's decision.

The Appellant sought permission to appeal which was granted by First-tier Tribunal Judge Hollingworth on 16 December 2014. At a hearing on 3 March 2015 in a written decision subsequently promulgated I found that the judge had made a number of errors of law which meant that the Original Tribunal decision could not stand and the matter would have to be remade.

The fact of the matter was that quite simply the evidence before him did not establish that there was a durable relationship but certainly the Appellant's and his wife's claim was that they were in a proper marriage attained by proxy and recognised in the Appellant's home country.

As I indicated in my directions the Appellant and Sponsor were to provide witness statements concerning the durability of the marriage and an explanation from the Sponsor of her being a qualified person exercising treaty rights as well as other evidence relating to the validity of the marriage. Further I directed that the Appellant and Sponsor should attend or absent of doing so for health or other reasons proper and adequate evidence should be filed to sustain the basis of their absence.

It was clear therefore that when I considered the error of law neither the Appellant nor the Sponsor were present. Whilst there may be an explanation for their absence, namely they were told by their Representatives that they did not need to attend, the fact was that the evidence was not before me to show that there was a durable relationship. Thus there was no such evidence before the First-tier Judge Majid nor before me. I made allowances therefore for what I regarded as ill-informed advice to enable them to provide such evidence.