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When the matter came before me I noted that there had been an application for this matter to be adjourned, that application having been made on 6 May 2015. It is said that as the claimant is suffering from post-natal depression and is unable to attend the hearing. That application was refused by the Upper Tribunal it being noted that no medical evidence had been produced to support that contention and that it was unclear why the claimant�s attendance was required in order for the Tribunal to determine whether the decision of the First-tier Tribunal had involved the making of an error of law.
There was no appearance by the appellant or for that matter her solicitors. No proper explanation is made for this and it must have been clear to the solicitors that in the absence of a positive indication from the Upper Tribunal that there would be no adjournment of the case, that they should have attended and I am satisfied in all the circumstances it would be appropriate to proceed to determine the application.
In re-making the decision I consider that the appropriate course of action in this case is to allow the appeal on the basis that the Secretary of State�s decision was not in accordance with the law. It follows therefore that the application remains before the Secretary of State awaiting a proper lawful decision and it is for the Secretary of State to make a fresh decision taking into account the findings of Judge Clapham which have not been challenged.
Accordingly therefore, for the reasons given, I am satisfied the decision of the First-tier Tribunal did involve the making of an error of law. I set it aside and I re-make it by allowing the appellant�s appeal on the basis that the decision of the Secretary of State was not in accordance with the law. I direct the Secretary of State to make a fresh decision on this matter, taking into account the findings of the First-tier Tribunal which are preserved. The respondent will also need to take into account the fact that the claimant now has a child who may well be an EU national.
The decision of the First-tier tribunal involved the making of an error of law and I set it aside.
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