Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04200/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 25th November 2016
On 22nd December 2016

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE MARTIN

Between

MR AREF KHAN MANGEL
(Anonymity Direction Not Made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss G Norman (instructed by Fountain, Solicitors)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Appellant, with permission, against a decision of the First-tier Tribunal (Judge Tully) promulgated on 19th January 2016 by which she dismissed the Appellant's appeal against the Secretary of State's refusal of his asylum claim.
2. The application for permission to appeal contained four grounds. Miss Norman had been instructed only the previous evening but had mastered the issues and realistically relied on only one; that the Judge erred in refusing the Appellant's adjournment application to obtain a medical report and by applying the Asylum and Immigration Tribunal (Procedure) Rules 2005 when the relevant Procedure Rules were the Tribunal Procedure Rules 2014. The two sets of Procedure Rules differ with regard to adjournment applications.
3. The 2005 Procedure Rules deal with adjournment applications at rule 21 which provides as follows -
21. (1) Where a party applies for an adjournment of a hearing of an appeal, he must -(a) if practicable, notify all other parties of the application;
(b) show good reason why an adjournment is necessary; and
(c) produce evidence of any fact or matter relied upon in support of the application.
(2) The Tribunal must not adjourn the hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined.
(3) The Tribunal must not, in particular, adjourn the hearing on the application of a party in order to allow the party more time to produce evidence, unless satisfied that-
(a) the evidence relates to a matter in dispute in the appeal;
(b) it would be unjust to determine the appeal without permitting the party a further opportunity to produce the evidence; and
(c) where the party has failed to comply with directions for the production of the evidence, he has provided a satisfactory explanation for that failure.
(4) Where the hearing of an appeal is adjourned, the Tribunal will fix a new hearing date which -
(a) shall be not more than 28 days after the original hearing date, unless the Tribunal is satisfied that because of exceptional circumstances the appeal cannot justly be heard within that time; and
(b) shall in any event be not later than is strictly required by the circumstances necessitating the adjournment.
4. The 2014 Tribunal Procedure Rules came into force on 20th October 2014. They differ from the 2005 Procedure Rules in that they contain no specific rule dealing with adjournment applications; rather adjournment applications appear to be encompassed within rule 2; the "overriding objective and parties' obligation to cooperate with the Tribunal."
5. Rule 2 of the 2015 Procedure Rules provides:-
(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with the case fairly and justly includes-
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it-
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must-
(a) help the Tribunal to further the overriding objective; and
(b) cooperate with the Tribunal generally.
6. It is unfortunate that the Judge referred to the wrong procedure Rules. However, whether that error is material depends upon the way in which she assessed and decided the adjournment application.
7. The Judge set out the adjournment application at paragraph 6. She set out that the appeal had previously been listed for a full hearing on 23rd October 2015. On that date the Appellant claimed to have been surprised by new evidence from the Respondent in the form of a Eurodac search that indicated that he been fingerprinted in Greece in 2008, which directly contradicted his evidence that he was in Afghanistan until 2009. As a result the hearing was adjourned to allow the Appellant the opportunity to address this issue and the Respondent was directed to serve a supplementary reasons for refusal letter. At that time, and for the first time, the Appellant's representative submitted that the Appellant's explanation for the discrepancy was that he was suffering from mental health problems and anxiety that had affected his memory. Also on 23rd October 2015 the Appellant was directed to file and serve medical evidence of his mental health problems by 18th December 2015.
8. No medical report was served in accordance with that direction.
9. The Appellant's representative produced to Judge Tully a letter from the Appellant's GP dated 11th January 2016 which stated that he was suffering from stress/anxiety query depression. He also provided a letter from an NHS consultant clinical neuropsychologist indicating that the Appellant had been referred to her by his GP and placed on a waiting list for assessment and an appointment would be offered "in due course" to decide if a "neuropsychological assessment may be of benefit."
10. Judge Tully recorded the Appellant's representative's submission that the Appellant should be given the opportunity to pursue that appointment, that his mental health issues make him a vulnerable Appellant and that evidence from a medical professional would be central in establishing the credibility of his claim that he was confused about the dates of events set out in his claim.
11. At paragraph 9 Judge Tully recorded that she asked the Appellant's representative if he could give her any indication of when an appointment would be made and when it might be reasonable to assume a medical report would be produced. He could not. Judge Tully asked him whether the Appellant had sought funding for a private medical report regarding his claimed condition and was told that he had not. The representative could offer no explanation why no such application had been made.
12. Judge Tully recorded that the Home Office Presenting Officer opposed the adjournment application on the basis that he was in a position to proceed and the Appellant had had ample time to obtain medical evidence but failed to do so.
13. At paragraph 12 Judge Tully noted that the adjournment application was made very late; on the day of the hearing. The previous hearing had taken place on 23rd October 2015 and it was by now 11th January 2016 and the Appellant had been on notice since October that he needed to supply a medical report and that it should be served by 18th December 2015. The Appellant had missed that deadline and no adjournment request was made then setting out any difficulties that there were in obtaining the required evidence. She noted that it was open to the Appellant to apply for funding to obtain a report, which might reasonably be expected to be produced relatively quickly but he chose not to do so and had not explained why. Although it was claimed by the Appellant that he had been chasing his GP, no evidence was produced to support that. The GP's letter did not indicate the Appellant was suffering from memory loss and the Judge found that if the GP had concerns about memory loss she might reasonably be expected to say so. The Judge noted that mental health issues and poor concentration did not equate to memory problems and there was no evidence that the Appellant had memory problems. While the Judge accepted that he had been referred to a consultant, there was no indication whatsoever as to when that appointment would take place and the outcome would be speculative. She said that given that the Appellant did not even have an appointment it would likely be many weeks/arguably months before the NHS report would be available.
14. At paragraph 13 of the Decision and Reasons Judge Tully noted that the Appellant claimed to need the medical report to establish that psychological problems caused him to have difficulty remembering dates. The Judge said that she had read the documentary evidence carefully and noted that the Appellant had answered questions about dates of events in Afghanistan at his screening interview and specifically confirmed that he was well enough to be interviewed. He did mention that he had "psychological nervous problems" but also it was specifically recorded that he had attended a local hospital and there was no evidence of illness. He did not claim at that time to have problems recording dates.
15. At paragraph 14 Judge Tully noted that the Appellant had volunteered evidence of the dates events took place in three separate statements prepared with the benefit of legal advice. While the Appellant always said he had nervous problems, he did not say that any psychological problems he had prevented him from giving this information and no submissions were made on any of those earlier occasions regarding his ability to recall dates and times when he was interviewed or preparing witness statements.
16. The Judge noted that there was no evidence to show that his representatives were concerned about his mental health and its impact on his ability to give evidence prior to the October hearing and no medical report was even suggested prior to date.
17. At paragraph 16 the Judge noted that the Appellant was legally represented throughout and would have had the opportunity to read the statements and his interview record and to go through them with his legal representatives. There was no evidence before her to show that he had said at any time that he was having difficulty with his memory or was unsure about dates. The Judge noted it was only when he was faced with evidence that was inconsistent at the hearing in October that he claimed mental disorder affected his memory. She found that the timing of the request to adjourn for a medical report was inconsistent with there being a genuine difficulty.
18. The Judge noted that the Appellant was present in court and could explain any problems he had, which she would take into account and she noted he had already produced his medical records from his GP to which he could refer.
19. The Judge then indicated at paragraph 18 that looking at the evidence and all the circumstances in the round, she considered that all the evidence which was required in order to be able to make a decision would, on conclusion of the Appellant's oral evidence, be available to her. She was not satisfied that refusing the adjournment prevented the just disposal of the appeal and refused the adjournment request.
20. Having done so the Judge then recorded that the Appellant indicated that he was able to proceed and his representative confirmed that he was in a position to proceed. The Judge noted also that the Appellant had seen his Dr the week before the hearing and that she had written in support of the appeal but did not say he was unfit to give evidence.
21. It is quite clear therefore that if the Judge had considered the adjournment application in accordance with paragraph 2 of the 2014 Procedure Rules she would have reached the same conclusion. The careful consideration that she gave to the application accorded with the requirements of the appropriate Procedure Rules. There was no proper explanation for the failure to take the matter further or to comply with the previous direction, and no reason to think that if further time had been afforded to the applicant any useful information would be forthcoming.
22. We also note that a subsequent report in possession of Miss Norman, but not produced to the Home Office nor the subject of an application to adduce further evidence, did not provide a diagnosis of memory problems, merely moderate depression.

Notice of Decision

The First-tier Tribunal Decision and Reasons is not tainted by a material error of law and is upheld. The Appellant's appeal to the Upper Tribunal is dismissed.

There has been no application for an anonymity order and we do not make one

Signed Date 25th November 2016

Upper Tribunal Judge Martin