Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03725/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 7 February 2017
on 16 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

Ms T. T. Sibande
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge McGrade, promulgated on 5 October 2016, dismissing her appeal against refusal of asylum.
2. The appellant advances two grounds.
Ground 1 - failing to act in a fair manner. The tribunal erred in refusing an adjournment: (1) when adjournment is sought to enable the appellant to produce corroborating evidence, it is wrong to refuse on the ground that the appellant is giving evidence on the issue, given that the very purpose of obtaining the evidence is to repair the appellant's damaged credibility; (2) in refusing an adjournment to allow the appellant to obtain a psychologist's report, which would have commented on ability to give evidence and whether her mental health explained why there were discrepancies, and at the same time rejecting the appellant's account due to perceived inconsistencies and discrepancies; and (3) in refusing the adjournment for the appellant to obtain an expert report commenting on the veracity of a police report and arrest warrant, and thereafter rejecting these documents.
Ground 2 - no assessment of failure of respondent to investigate the police report and arrest warrant. (1) The tribunal misdirected itself in terms of PJ (Sri Lanka) [2015] 1 WLR 1322. The tribunal failed to assess whether the respondent ought to have carried out investigation of documents and the consequences of failing to do so, particularly in light of refusal to grant an adjournment. The tribunal should have held that the documents were central to the case and that a simple process of enquiry would conclusively resolve the authenticity and reliability of the documents. (2) The consequence of a decision that the national authorities are in breach of their obligations to undertake a proper process of verification is that the respondent is unable thereafter to mount an argument challenging authenticity of the documents unless and until breach is rectified by proper enquiry. Absent suitable investigation it is not open to the respondent to suggest that documents are forged or otherwise are not authentic.
Submissions for appellant.
3. The judge made no specific finding about the arrest warrant. Any rejection was covered by only his general conclusions. There was background evidence that abortion is illegal. The evidence suggested that not only is the law in place, it is enforced. The existence of private clinics carrying out abortions was shown by background evidence, and was consistent with the appellant's claim. There was no ground of appeal going to the absence of a specific finding about the warrant, but the UT had discretion to allow the argument to be advanced. The UT should either substitute a fresh decision on the basis that the warrant was authentic, or alternatively remit for a further hearing.
4. It was an error to refuse the adjournment on the basis that there had been delay on the appellant's side. As to whether there were further reports on which the appellant might have relied, had adjournment been granted, none was yet in existence, but the appellant was due to see a psychologist the day after the hearing in the UT. If ground 1 was made out, there should be a remit.
Submissions for respondent.
5. The refusal of an adjournment, and the late raising of issues of authentication by the respondent, should both be viewed in context of the case history. The case did not call for the first time before Judge McGrade on 13 September 2016. An appeal had been heard in March 2015 (and dismissed) under fast track procedure. The outcome was set aside only because of legal challenge later and separately sustained against that procedure. The authenticity of the documentation on which the appellant relied was in issue from the outset. The expert report on which she relied was available at that previous hearing. The appellant had solicitors specialising in this jurisdiction both during the proceedings in England and since the proceedings moved to Scotland. Adjournment was granted in May 2016 to take full instructions. A second adjournment was granted to obtain an updated expert report and other documentation. A third adjournment request was refused, having been based on much the same information, and on an indication that the updated expert report and a GP's report were still awaited, and attempts were being made to instruct an expert to verify the police report and arrest warrant. The hearing before Judge McGrade ran out of time, and appellants were given the chance to make written submissions. That was a further opportunity to seek to update and develop the case, if further reports were likely to come to hand. There was no question of the appellant having a less than fair opportunity to put her case. The alleged responsibility of the respondent to authenticate documents had not been put to the respondent or to the tribunal. PJ was not an authority that there is always a responsibility on the respondent to authenticate documents. The point was not so obvious that the judge could be expected to take it of his own initiative, when it was not taken by experienced representatives who had ample opportunity to do so. The fact was that the appellant had done nothing to advance her case in respect of the documentation over a period of years.
Reply for appellant.
6. The documentation was central to the case, was readily verifiable, and there are ways of doing so through embassy contacts in Malawi. Authentication would change the whole nature of the case.
Conclusions.
7. The grounds directed against refusal of adjournment are framed as if there is an ongoing right to adjournment, without regard to the history and context of the case.
8. On the information before the judge on the day, the appellant had ample time to prepare a case through well-qualified representatives. Two adjournments had been granted, and a third request refused. There was little to suggest that if the adjournment were granted, the case would be much improved within a reasonable further period.
9. It was far from unfair, as matters then stood, to refuse adjournment. It would have been surprising to allow it.
10. Even with the benefit of hindsight and considerable further time having gone by, it does not appear that there has been any injustice to the appellant through the refusal of an adjournment. She was not in a position to present any better a case by the date of the hearing in the UT. No actual unfairness has resulted, such as might amount constructively to error of law.
11. The grounds seek to read rather more into PJ than it says; see paragraph 30, "Simply because a relevant document is potentially capable of being verified does not mean that the national authorities have an obligation to take this step. Instead, it may be necessary to make an enquiry in order to verify the authenticity and reliability of a document - depending always on the particular facts of the case - when it is at the centre of the request for protection, when a simple process of enquiry will conclusively resolve its authenticity and reliability?".
12. Context, again, is key. The authenticity of the documents was a live issue from the outset. There was a protracted period of procedure during which the appellant not only failed to suggest that there was any obligation on the respondent, adjournments were sought on the understanding that the obligation was on her side. It is not open to an appellant to keep such a card up her sleeve and to play it only at the very late stage of grounds of appeal to the UT, under the guise of an obvious point which the judge should have taken on her behalf. If it is considered that there is an exceptional situation such that the respondent has a duty to undertake a process of verification, an appellant should put that to the respondent at the first available opportunity.
13. Separately, the appellant suggested that a simple process of enquiry would conclusively resolve the matter; but that is a point the respondent was not prepared to accept, and which I am not prepared to take as obvious.
14. The first ground shows no unfairness. The second ground (even if there might have been anything in it, if raised promptly) comes far too late.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

15 February 2017
Upper Tribunal Judge Macleman