Case No. UKUT-00450(IAC)

(1) There are three preliminary issues requiring our consideration. The first relates to the scope of the appeal. As Mr Kovats QC has candidly acknowledged, this is determined decisively by the terms of paragraph 44 of the decision of Deputy Upper Tribunal Judge Monson. In very brief compass indeed, the issue under paragraph 321A(2) of the Rules was the subject of the Judge’s finding that a material error of law had been established. In contrast, the Judge unequivocally affirmed the decision of the First-tier Tribunal on the issue relating to paragraph 321A(1) of the Rules. The ineluctable consequence of that is that only the first of these issues is live at this remaking stage.(2) The second issue concerns the documents that are found in Section E of the Appellant MA’s bundle. Without conducting a disproportionately lengthy tracing exercise two things are reasonably apparent. The first is that their genesis can be traced to paragraph 45 of the decision of Deputy Upper Tribunal Judge Monson. The second is that in the profusion of correspondence which has characterised the last few months of these proceedings further documents have been provided and some may not be easily attributed to specific categories or issues.(3) We must bear in mind that we are a tribunal in which the conventional rules of evidence of civil proceedings are not applied with full rigour. The first question for us is whether these documents might have a bearing on the issues. We will be unable to provide a concluded answer to that until all of the evidence and arguments are completed. However, we can provide a provisional answer which is affirmative. This assessment can if necessary be revisited and reopened if there are proper grounds for doing so at a later stage of the hearing. If this discrete ruling stands then the conventional consequence will follow, namely that the main issue for the Tribunal will be the weight, if any, to be attached to the documents in question.(4) We bear in mind also that the documents under scrutiny have been in the possession of the Appellant MA’s legal representatives for some time, albeit not in satisfactory form as regards some of them and we deduce from Mr De Mello’s submissions that there is no element of ambush or surprise and he will be able to deal with the documents by examination-in-chief of the Appellant. Accordingly there is no issue of unfairness.(5) We propose to adopt precisely the same approach to the final document to which our attention has been drawn on behalf of the Appellant. This is a new document in the context of these appeal proceedings: the data transfer agreement, the parties whereto, we note, are ETS Global on the one hand and ETS on the other.(6) We are cognisant of the Secretary of State’s submission in relation to the data issue, having been alerted to it on more than one occasion previously and having considered the Secretary of State’s skeleton argument. Nonetheless we shall admit this document on the ground that it is of potential relevance to one of the Appellant’s grounds of appeal and shall in due course rule in our final decision on its relevance and, if it is accorded any degree of relevance, the weight and significance, if any, which flow therefrom.