Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03516/2015

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

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Inayat shah syed
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr G Harrison, Senior Home Office Presenting Officer
For the Respondent: Mr T Hussain of Counsel instructed by Leonard & Co Solicitors

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appeals against a decision of Judge Hindson of the First-tier Tribunal (the FtT) promulgated on 16th February 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to him as the Claimant.
3. The Claimant's asylum, humanitarian protection claim and human rights claim was refused by the Respondent on 11th February 2015.
4. The appeal was heard by the FtT on 14th January 2016. The Secretary of State applied for an adjournment on the basis that the Presenting Officer did not have the bundles of documents submitted on behalf of the Claimant. This was because of a flood which had destroyed some files, and a further bundle submitted by the Claimant, had only been sent to the FtT on 13th January, the day before the hearing, and had not been served on the Secretary of State.
5. The FtT allowed the Secretary of State's Presenting Officer some time to consider the documents but refused the adjournment request and proceeded with the hearing. The appeal was allowed, the FtT finding that the Claimant was entitled to be granted asylum, and that to return him to Pakistan would breach Article 3 of the 1950 European Convention on Human Rights.
6. The Secretary of State applied for permission to appeal to the Upper Tribunal and permission to appeal was granted by Judge Grimmett of the FtT in the following terms;
2. It is arguable that the judge erred in refusing an adjournment as although he cannot be criticised for refusing to adjourn on the basis of the flood in the Respondent's offices, he did note that the Appellant's third bundle of documents was not lodged until the day before the hearing. As that bundle contained a very lengthy and detailed expert report it is arguable that the Respondent should have been granted an adjournment to consider it fully.
3. It is also arguable that the judge's reasons for finding the Appellant credible on the basis of "ample evidence" without specifying the same is inadequate. The judge may also have erred in not dealing with section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
7. Directions were 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 Secretary of State's Submissions
8. Mr Harrison relied upon the grounds contained within the application for permission to appeal.
9. Firstly it was contended that the FtT had erred in law by failing to consider section 8 of the 2004 Act, which was raised in paragraphs 48-50 of the Respondent's reasons for refusal. These factors should have been taken into account when assessing the Claimant's credibility.
10. Secondly it was contended that the FtT had erred by failing to give reasons or any adequate reasons for findings on material matters. It was contended that no adequate reasons had been given as to why the Claimant would be at risk of harm from the Pakistani authorities, and the FtT had not provided any reasons why the report of Dr Ballard was preferred to the Secretary of State's objective evidence. It was further contended that the FtT had not provided any reasons why the Claimant would be at risk from groups opposing the Hazaras nor any reasons for finding that state protection would not be available.
11. Thirdly it was contended that the FtT had committed a procedural or other irregularity capable of making a material difference to the outcome or fairness of the proceedings. It was contended that the FtT's refusal to grant an adjournment had resulted in unfairness to the Secretary of State. The Presenting Officer was unable to present the case properly as he was not given sufficient time to consider the Claimant's large bundle. The supplementary bundle containing the expert report had only been served on the Tribunal the day before the hearing and not in accordance with standard directions. As it appeared that the expert report was crucial in determining the appeal, the FtT had erred by not affording the Secretary of State an adequate opportunity to consider that report.

Claimant's Submissions
12. Mr Hussain relied upon a response drafted pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 though it was accepted that the contention that the Claimant's supplementary bundle had been served five days before the appeal hearing was wrong. Mr Hussain accepted that the supplementary bundle containing the expert report had only been served on the FtT on 13th January 2016.
13. Mr Hussain submitted that the Secretary of State was seeking to re-argue the case and the FtT had given adequate reasons for findings that had been made. It was not unfair to refuse an adjournment as the Presenting Officer had been given some time to consider the documents. Mr Hussain submitted that the section 8 issue was not determinative, and contended that the FtT was not required to set out every piece of evidence.

My Conclusions and Reasons
14. I will deal with the grounds in the same order as raised by the Secretary of State. Dealing firstly with section 8 of the 2004 Act, I find the FtT erred in law. This is because section 8 was raised in the refusal decision, and therefore should have been considered in line with the guidance given in JT (Cameroon) [2008] EWCA Civ 878. The Court of Appeal held in that decision that section 8 factors must be taken into account in assessing credibility, although the weight to be attached was a matter for the decision-maker. The error in this case, is simply to make no reference at all to the section 8 issue.
15. Next I consider whether the FtT has given adequate reasons for the findings made. I conclude that on this point the FtT has erred in law. I set out below the judicial headnote to Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC);
It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.
16. The reasons of the FtT are contained in paragraphs 31-33, and consist of eighteen lines. It is common ground that it is not necessary to rehearse every issue raised in a case, but it is not clear from reading the reasons of the FtT, why the appeal was allowed. The FtT does not adequately address the reasons given by the Secretary of State for refusing the appellant's application. There is no adequate analysis of the evidence relied upon by the Appellant. I find that the inadequacy of reasoning is a material error of law.
17. I also find that the FtT erred in law when considering the adjournment request. The FtT has not taken into account the guidance in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) the headnote of which is set out below;
If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.
18. The FtT accepted that the Claimant's bundles amounted to in excess of 300 pages. The FtT file indicates that the first two bundles were served as long ago as April 2015, but the point made by the Secretary of State was that a file containing these bundles had been damaged by flood water. The third bundle relied upon by the Claimant which contained an expert report, and which contained pages 283-349, was not served on the FtT until 13th January 2016. That was the day before the hearing. It appears that the bundle was sent by fax commencing at 11.56am. It is completely unsatisfactory to serve a substantial bundle, containing an expert report, by fax at such a late stage.
19. The FtT in considering the adjournment application makes reference to the length of time that would elapse if the appeal was adjourned, and makes the point in paragraph 11 that "excessive delay in repeated adjournments must be avoided if at all possible."
20. It is entirely correct that excessive delay and repeated adjournments must be avoided if possible, but rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 states that the overriding objective of the rules is to enable the Tribunal to deal with cases fairly and justly. The guidance in Nwaigwe stresses that the test to be applied is that of fairness. In my view, the FtT did not apply that test when considering the adjournment request by the Secretary of State, who was not in possession of the Claimant's bundles, and in particular when one of those bundles had been served far too late, and contained a lengthy expert report upon which reliance was to be placed.
21. For the reasons given above, the FtT materially erred in law. The decision must be set aside and re-made.
22. I find that it is appropriate to remit this appeal back to the FtT to be heard afresh having considered paragraph 7.2 of the Senior President's Practice Statements which I set out below;
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.
23. In my view the requirements of paragraph 7.2(a) and (b) are met. No findings of fact are preserved.
24. The appeal before the FtT will take place at the Bradford Hearing Centre. The parties will be advised of the time and date in due course. The appeal is to be heard by an FtT Judge other than Judge Hindson. It is understood that no interpreter will be required, but if this is not the case the Claimant must notify the FtT immediately.
Notice of 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 with no findings of fact preserved.

Anonymity

The FtT made no anonymity direction. There has been no request to the Upper Tribunal for an anonymity order, and I see no need to make such an order.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee award is made. The issue of any fee award will need to be considered by the FtT when the appeal is heard afresh.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall