Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: aa/03274/2014
Aa/03278/2014
Aa/03281/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th August 2016
On 10th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Nj (first Appellant)
rn (second Appellant)
sn (third Appellant)
(ANONYMITY DIRECTION made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr A Burrett of Counsel instructed by Lawland Solicitors
For the Respondent: Mr G Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellants appeal against the decision of Judge Birrell of the First-tier Tribunal (the FTT) promulgated on 9th November 2015.
2. The Appellants are Sri Lankan nationals, the first and second Appellants are married and are the parents of the third Appellant.
3. The Appellants claimed asylum on the basis of imputed political opinion. Evidence was given to the FTT at a hearing on 23rd October 2015. The FTT dismissed the appeals on all grounds. The Respondent was not represented by a Presenting Officer.
4. The Appellants applied for permission to appeal to the Upper Tribunal. Reliance was placed upon three grounds which are summarised below.
5. Firstly the FTT erred in failing to apply PJ (Sri Lanka) [2014] EWCA Civ 1011. There had been a previous adjournment at the request of the Respondent to enable verification enquiries to take place in relation to a letter from a lawyer in Sri Lanka, court summonses, and an arrest warrant. The Respondent had not indicated the result of those enquiries.
6. Secondly the FTT erred in failing to make a finding as to whether there was an obligation on the Respondent to undertake document enquiries. The previous adjournment had been to enable the Respondent to make enquiries, and the Appellants had relied upon the fact that the Respondent was undertaking such enquiries. It was contended that it was unfair for the FTT to make adverse credibility findings in relation to those documents, without receiving any result of the verification enquiries.
7. Thirdly the FTT had erred by "entering the arena" and, in the absence of a Presenting Officer, failing to take into account the Surendran guidelines. It was contended that the FTT fell into error by questioning the Appellants' account "on the basis of the Respondent's stance, and the refusal letter."
8. Permission to appeal was granted by Judge Reid of the FTT in the following terms;
"2 The grounds argue inter alia the judge erred in failing to apply the case of PJ (Sri Lanka) [2014] EWCA Civ 1011 when considering the adjournment application by the Respondent; the judge in assessing the validity of the summons erred by not referencing the Respondent's failure to verify the documents; the judge erred in failing to find whether the Respondent had an obligation to undertake document enquiries; the judge in absence of a HOPO acted contrary to the Surendran guidelines; the judge's approach was unfair in questioning the first appellant's account on the basis of the Respondent's stance.
3 The Respondent's adjournment application was refused by DJ McClure the day before the hearing and was not renewed. However Judge Birrell had a very good knowledge of these appeals and, sitting as a Deputy UTJ, ordered the rehearing and at the first rehearing, sitting as an FTTJ, granted an adjournment for document verification identifying that verification would likely determine the appeal one way or another. It is arguable that she should have considered adjourning the hearing ex proprio motu with reference to the Procedure Rules 2014. It is also arguable that the judge failed to have regard to the Surendran guidelines in her questioning of the first appellant in the absence of a HOPO. It is further arguable that the judge should have had regard to PJ Sri Lanka in her assessment of the first appellant's credibility absent document verification by the Home Office.
4 The grounds disclose an arguable error of law."
9. Following the grant of permission to appeal the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FTT had not materially erred in law. The FTT considered the evidence in the round and was entitled to reject as being unreliable, the summonses, arrest warrant and letter from a lawyer in Sri Lanka. It was submitted that the FTT did not breach the Surendran guidelines, and was entitled, given the apparent inconsistencies between the first Appellant's account, and a medical report, to ask questions so that the first appellant could have an opportunity of answering any concerns.
10. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
11. Mr Burrett relied upon the grounds contained within the application for permission to appeal and submitted that the FTT should have realised the difficulties that would arise in the absence of a Presenting Officer.
12. Mr Burrett submitted that it was appropriate for a Presenting Officer to raise issues and cross-examine an Appellant, but not for the FTT to undertake such a role.
13. Mr Burrett pointed out that there had been a previous hearing adjourned specifically to enable verification of documents to take place. That application had been made by the Respondent, and it was stated that verification enquires would probably decide the appeal one way or another.
14. Mr Burrett explained that he had made submissions to the FTT that in the absence of any evidence that verification enquiries had taken place, no adverse inference should be drawn by the FTT in relation to the documents from Sri Lanka.
15. Mr Harrison relied upon the rule 24 response, contending that the FTT had not erred in law, and had carefully considered all the documentary evidence before it. I was asked to conclude that the grounds amounted to disagreement with the findings made by the FTT, but disclosed no error of law.
16. Mr Burrett pointed out that the FTT recorded at paragraph 13 that there had been a previous adjournment for verification enquires to take place and that there was no evidence to indicate the result of those enquiries, or whether any enquiries had been carried out. The FTT had not considered the principles in PJ (Sri Lanka), and in paragraph 83, had not adequately analysed the documentation in the light of the PJ (Sri Lanka) guidelines.
17. Both representatives indicated that if an error of law was found, then it would be appropriate to remit this appeal back to the FTT to be heard afresh.
18. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
19. I will deal firstly with the Surendran guidelines. I do not find the FTT erred in law, nor do I find that the FTT "entered the arena".
20. Paragraph 6 of the guidelines indicates that it is not the role of a judge to adopt an inquisitorial role, and in my view the FTT in this case did not adopt such a role. Paragraph 6 of the guidelines indicates that if there is a matter which a judge believes should be addressed, then such a matter should be drawn to the attention of the Appellant's representative, who should be invited to make submissions or call evidence in relation thereto.
21. Paragraph 7 of the guidelines indicates that if a judge considers that clarification is necessary, then the judge should be at liberty to ask questions for the purposes of seeking clarification, although it is not the function of the judge to raise matters which a Presenting Officer might have raised in cross-examination had he or she been present.
22. At paragraph 28 the FTT, in my view, followed the Surendran guidelines, indicating to Mr Burrett, that the first Appellant would be given the opportunity to comment on the possibility of self-infliction by proxy, in relation to the difference between his account of injuries, and a medical report. In my view this was a fair and just approach and in line with guidance given in KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00320. At paragraph 298 of KV, it was recognised that Tribunal judges should ensure that an Appellant has an opportunity to deal with allegations that injury has been not caused in the way alleged by the Appellant but by a different mechanism.
23. If the FTT made findings on issues that had not been raised with the Appellant, so that the Appellant did not have an opportunity to comment, that would be unfair, and would result in an application being made for permission to appeal.
24. In this case, the FTT gave the Appellant an opportunity to comment on relevant issues. There was no application for an adjournment made on behalf of the Appellant, and I find no unfairness, and no breach of the Surendran guidelines.
25. I will deal with the first and second Grounds of Appeal together. On this issue I find an error of law.
26. These appeals had initially been considered by the FTT in August 2014 and dismissed. That decision was subsequently set aside by the Upper Tribunal in March 2015 and remitted back to the FTT to be heard afresh with no findings preserved.
27. The re-hearing was to be heard on 10th June 2015 at the Manchester Hearing Centre. The hearing was adjourned because the Appellants had served further documents late. Those documents included the letter from a Sri Lankan lawyer, two summonses, and an arrest warrant. The Respondent requested an adjournment to enable verification enquires to take place, on the basis that if the documents were genuine, they would strongly support the Appellants' appeals, and if not genuine, the documents would substantially damage the appeals.
28. The hearing was listed to be heard on 23rd October 2015. On 22nd October 2015 the Respondent requested an adjournment on the basis that it would not be possible to provide a Presenting Officer at the hearing on 23rd October 2015. This application was refused by a Designated Judge.
29. There was no further application for an adjournment made to the FTT by either party.
30. The FTT therefore had no information to indicate whether any verification enquiries had been made, and if such enquiries had been made, the result of those enquiries.
31. I find that the FTT should have considered the guidance in PJ (Sri Lanka) given that there had been a previous adjournment specifically for the purpose of verification enquiries in relation to documents from Sri Lanka. The general guidance in relation to consideration of documentary evidence is that contained in Tanveer Ahmed [2002] UKIAT 00439. This is the approach adopted by the FTT at paragraph 83, in that if a claimant seeks to rely on a document, then in the normal course, the burden lies on the claimant to show that it is a document that can be relied on.
32. What was not considered is the guidance in paragraph 29 of PJ (Sri Lanka) in that "the circumstances of particular cases may exceptionally necessitate an element of investigation by the national authorities". It was however stressed that this step will frequently not be feasible or may be unjustified or disproportionate.
33. In paragraph 30, guidance is given that simply because a document is potentially capable of being verified, does not mean that the national authorities have an obligation to take this step. It may be necessary to verify the authenticity of a document when it is at the centre of a request for protection, and when a simple process of enquiry will conclusively resolve its authenticity and reliability.
34. In paragraph 31 of PJ (Sri Lanka) it is stated, in summary, that if national authorities are in breach of their obligations to undertake a proper process of verification, the Secretary of State would thereafter be unable to mount an argument challenging the authenticity of the documents unless and until the breach is rectified by proper enquiry.
35. In paragraph 32 it is stated that it is for a court or Tribunal to decide whether there was an obligation on the Secretary of State to undertake particular enquiries, and if it is concluded that this requirement existed, it is for the court or Tribunal to resolve whether the Secretary of State sustainably discharged the obligation.
36. It seems to me that the documents in question, those being two summonses, an arrest warrant and a letter from a lawyer in Sri Lanka confirming the authenticity of those documents are central to the Appellants' request for protection. If these documents can be relied upon, then the Appellants would be at risk if returned to Sri Lanka. This is confirmed at paragraph 7(d) of the head note to GJ and others (Sri Lanka) [2013] UKUT 319 (IAC) because if there is an extant court order or arrest warrant in force, then the person who is the subject of that court order or arrest warrant would appear on a computerised "stop" list accessible at the airport in Sri Lanka. The Respondent appears to have accepted at the previous FTT hearing in June 2015, that the documents are at the centre of the request for protection, and it would not be difficult to make enquires to conclusively resolve the authenticity and reliability of those documents. That is why the adjournment application was made and granted.
37. The FTT was in a difficult position on 23rd October 2015, an adjournment request having been refused the previous day, and there being no Presenting Officer in attendance to advise whether there had been any attempt to verify the authenticity of the documents.
38. I accept that there is some force in the point made on behalf of the Appellants, that they were aware that the hearing in June 2015 had been adjourned for verification enquiries to be made, and that they had relied upon those enquiries being made. It was therefore unfair to reach adverse findings on the documents, in the absence of any information as to what if any verification enquiries had been made.
39. I therefore conclude that a material error of law is disclosed by Grounds 1 and 2 of the application for permission to appeal and therefore the FTT decision is unsafe and must be set aside. The documents in question are at the centre of the claim for protection, and I find that the error infects other findings, and therefore no findings of fact can be preserved.
40. Both representatives suggested that if an error of law was found, the appeals should be remitted to the FTT. I have considered paragraph 7 of the Senior President's Practice Statement which is set out below;
"7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that;
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact-finding which is necessary in order for the decision and the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
7.3 Re-making rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact-finding is necessary."
41. In my view the Upper Tribunal should not be the primary fact-finding Tribunal. I am conscious that this appeal has been heard twice previously in the FTT, but in view of the fact that no findings can be preserved, I consider, reluctantly, that it is necessary to remit this appeal once again to the FTT to be heard afresh.
42. The appeal will be heard by the FTT at the Manchester Hearing Centre by an FTT Judge other then Judge Agnew and Judge Birrell. The parties will be advised of the time and date of the hearing in due course.
Decision

The decision of the FTT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FTT.

Anonymity

No anonymity order has previously been in force. As this is a claim for international protection, I consider that it is appropriate to make an anonymity order pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee award is made by the Upper Tribunal. This must be considered by the FTT when the appeal is re-heard.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall