Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09741/2014

THE IMMIGRATION ACTS

Heard at Field House
Promulgated on
19 July 2016
29 September 2016

Before

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

Between

ABU RAHMAT
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Ata, Ata & Co Solicitors
For the Respondent: Mr C Avery, Senior Presenting Officer

DECISION AND REASONS
1. This appellant, a national of Afghanistan, born 20 January 1996 has been granted permission to appeal the decision of First-tier Tribunal Judge Holt. For reasons given in her decision dated 12 February 2015 she dismissed the appellant's appeal against the decision dated 04 November 2014 refusing to vary the appellant's leave to enter or remain and the further decision to remove him from the United Kingdom. The appellant who had arrived in the United Kingdom in the early course of 2008 claimed asylum which was refused. However, in the light of his age he was granted discretionary leave to remain for three years until 17 April 2011. Further leave was granted by the Secretary of State, under the discretionary leave to remain policy then in force, until 20 July 2012. The appellant made an application for further leave on 19 July 2012, which led to the above adverse decisions, for reasons given in a letter dated 28 October 2014. The Secretary of State relied on reasons previously given in a letter dated 26 August 2011 in deciding not to treat the more recent application as one for asylum.
2. The asylum claim had been based on a fear of the appellant's father's enemies pursuing a vendetta against him. The appellant introduced a new limb to his claim in a statement dated 28 January 2015 on the basis that he would be unable to access any meaningful protection from the state authorities as a Christian convert from Islam. He refers to his notice of appeal having raised this new limb and he confirms he was baptised on 30 November 2014.
3. The appellant's representative (Mr Peter Thornhill, Solicitor) indicated to Judge Holt that he would not be pursuing the original asylum claim and would not be advancing an Article 8 claim. Instead the focus would be on the appellant's conversion to Christianity. The judge found the claim was not credible. Permission to appeal her decision was refused by the First-tier Tribunal (First-tier Tribunal Judge Holmes) and subsequently on renewal of the application by the Upper Tribunal (UTJ Reeds) on 17 June 2015. Thornhills solicitors continued to act for the appellant at that stage.
4. The Respondent took steps to remove the appellant. On 5 August 2015 Thornhills wrote to National Removals Command, explaining that although they were aware of the refusal by the Upper Tribunal of the application for permission to appeal they had not received a copy of the notice of decision. They knew that it had been served on the Liverpool Asylum Team on 2 July 2016. The copy that had provided by the respondent was only of the second page. Attempts to obtain a full copy had not been successful. The letter reiterates a request for a full copy of the decision in the context of Thornhills awareness that it was possible to apply for judicial review and they were conscious of the limited time frame within which to do so.
5. On 27 August 2015 the appellant applied for permission to proceed with the claim for judicial review of UTJ Reeds decision. Duncan Lewis Solicitors were now acting and we note that the statement of facts and grounds were settled by counsel. Although the challenge raised a matter that had not been previously raised in the grounds of appeal before the Tribunal, it was contended that the issue was "Robinson obvious" such that permission ought to properly be granted. In essence it was argued that the Secretary of State had acted in breach of her public law duty to properly inform the court of the true position under her published Home Office Asylum Instruction on Discretionary Leave. It was argued that the appellant's entitlement to indefinite leave to remain under the policy was relevant to whether his removal from the United Kingdom was lawful and proportionate.
6. The claim included an application for urgent interim relief prohibiting the appellant's removal and we note, in particular, section 9 of the form a reference to Mr Ata of Duncan Lewis Solicitors in which he is described as a consultant solicitor "in the firm of Duncan Lewis Solicitors" and that he had the conduct matter on behalf of the claimant. It is not clear whether an order was made staying removal of the appellant pending consideration of the application but in any event the matter came before Dove J on 22 October 2015 when he granted permission with the following observation:
"I am prepared to grant permission for this claim to be commenced out of time and grant an extension of time in that extent. It seems that the claim was commenced only a very short time after the time limit had expired. I am satisfied that it is at least arguable that the claimant's case should have been considered under the transitional assessment set out in paragraph 14 of the statement of facts and grounds, and that the failure to do so was arguably an error in this case. I am satisfied that the case engages an important point of principle in relation to the application of the transitional arrangements and that there are potentially serious consequences for the claimant were he to be returned."
The application was accompanied by a letter dated 25 August 2015, addressed to National Removal Command from Duncan Lewis pointing out their client had not been served with a decision refusing permission to appeal until 17 August 2015. A copy of the letter from Thornhill dated 5 August was also enclosed. This assertion appears to have persuaded Dove J to extend time. It remains unexplained how it is Thornhills were aware that the decision refusing permission had been served on the Liverpool Asylum Team, but that is not an aspect which it is necessary for us to pursue.
7. On 21 August 2015 Ata & Co, a third firm of solicitors, wrote to UK Visas and Immigration. They made formal applications for indefinite leave to remain in these terms:
"Our client herewith applies for indefinite Leave to Remain on the basis that he had six years residence with Discretionary Leave to Remain under the old policy. In your decision dated 28 October 2014 there is a conspicuous omission of the application of a published policy to our client's case, rendering the decision of October 28th not in accordance with the law, and hence unlawful.
We request your urgent attention to this apparent mishandling and request that our client is released on TA."
8. In reply on 23 August, National Removals Command explained that the case had been reconsidered. It was observed that on 19 July 2012 the appellant had made an application for further leave to remain and not for indefinite leave to remain. Furthermore, it was observed that the appellant had failed to lodge an application on the appropriate form and pay the relevant fee as this is a charged application with the submissions of 21 August 2015. The reply addresses other aspects of the history of this matter including reference to the competence of the appellant's solicitor before the First-tier Tribunal. It was not considered it would be appropriate to grant leave to remain. The attention of Ata & Co was drawn to paragraph 353 of the Immigration Rules and short reasons are given why it was considered the submissions did not amount to a fresh claim.
9. This letter must have been before Ata & Co Solicitors (or Mr Ata as a consultant to Duncan Lewis & Co) before the judicial review claim was lodged on 27 August and indeed the contrary is not asserted. That claim however, made no reference to the fresh claim decision but instead purported to be a Cart Judicial Review. Whether this was through incompetence or for some other reason we do not know. What we do know is that by mid August 2015, Mr Ata in his role as the sole practitioner with Ata & Co Solicitor or as a consultant to Duncan Lewis & Co, was well aware that the point he wished to run had not been raised as a ground of appeal before the First-tier Tribunal.
10. There was no request for a substantive hearing in the Judicial Review proceedings and on 18 January 2016, the Vice President of the Upper Tribunal granted permission to appeal. On that basis the case came before us on 19 July.
11. On 2 February 2016 the Secretary of State provided a response under Rule 24 observing that she did not have a copy of the decision of the High Court nor the appellant's initial grounds seeking permission to appeal. Having read the First-tier Tribunal's determination, it appeared to her to be detailed and well reasoned and that cogent and adequate reasons had been given for the First-tier Tribunal's conclusion that the appellant did not qualify for leave in the United Kingdom as a refugee.
12. No application had been made to amend the grounds of challenge to the decision of the First-tier Tribunal prior to the hearing before us and Mr Ata acknowledged the only course open to him was to seek to amend the grounds or apply for an adjournment. He sought both but did not seek to pursue the original grounds. He attributed his difficulties to the absence of legal aid. He had not received notice of hearing which he had learned of only three days prior and was appearing pro bono. He claimed to have notified the tribunal of his involvement in a letter sent 11 April 2016 or possibly earlier. Mr Ata also produced an extract from the policy on which he sought to rely, which Mr Avery did not accept related the correct policy. The latter reminded us of the Secretary of State's position set out in her letter dated 25 August 2015.
13. We did not consider there was a justified basis for adjournment or that permission to amend grounds should be given. With Mr Ata no longer wishing to pursue the original grounds of challenge, we dismissed the appeal. In coming to this decision we had have regard to the following matters. It was not until after the hearing on 21 July 2016 that an email was received from Ata & Co Solicitors in terms that they acted for the appellant in relation to "his immigration matter". A form of authority dated 20 July 2016 was enclosed. At the hearing Mr Ata said that he had written to the tribunal indicating a change of representative on 11 April 2016. That letter is on Duncan Lewis letterhead and is in these terms:
"We write to request that our client's appeal is listed for a fresh hearing in the First-tier Tribunal in the light of the administrative court decision dated 16/12/2015 quashing the decision of the Upper Tribunal to refuse our client's application. Please see attached for the administrative court's decision.
If you have any queries, please do not hesitate to contact us.
Please ensure that you quote our reference number in ASRA/RO62700001/Rahmat in all correspondence and communications with this office."
14. The letter is addressed to the Immigration and Asylum Tribunal (a body which does not exist) and appears to have been based on a misconception that the consequence of the decision of Green J was that the First-tier Tribunal had jurisdiction to hear the appellant's appeal. Notice of the hearing was sent out by the Upper Tribunal on 16 June 2016 to Thornhills and to the appellant. Although Duncan Lewis's letter of 11 April 2016 indicates that the appellant was now their client, it does not explain in clear terms that they had been instructed in the appeal proceedings in place of Thornhills. In any event the appellant had been served and as Mr Ata acknowledged, he had three days' notice of the hearing. There is a lack of clarity as to the relationship between Ata & Co and Duncan Lewis, but in any event it is beyond doubt that Mr Ata has been familiar with the matter since August 2015 and would have been aware, following his success on the judicial review proceedings, of the need to consider applying for permission to amend the grounds of challenge to the First-tier Tribunal's decision. In the light of his previous involvement, three days was ample time for him to prepare the case. Despite what Mr Ata said to us, it is clear that Ata & Co were not on record at any time before the hearing before us.
15. Having refused the request for adjournment we considered whether to permit amendment of the grounds. We saw no justification for doing so along the uncertain and vague lines that Mr Ata advanced in his submissions. Whether or not the policy applied to the appellant was not raised before the First-tier Tribunal and the attempt to do so now on a "Robinson obvious" basis is a misunderstanding of the principle in Regina v SSHD, ex parte Robinson [1998] QB929. That decision enabled the immigration appellate authorities to consider an obvious point of Convention jurisprudence which may avail an appellant even if it is not pleaded or otherwise advanced on his behalf. As observed by Keene LJ in Miftari v SSHD [2005] EWCA Civ 418 at [39] "The rationale was that, if such a point were ignored on technical grounds, there will be a danger that this country will be in breach of its obligations under the Convention". "Robinson obvious" was also considered by the Court of Appeal in AA(Nigeria) v SSHD [2015] EWCA Civ 1249 in which regard was also had to Bulale v SSHD [2008] EWCA Civ 806. As observed by Richards LJ at [32]:
"[32] I have no difficulty with the notion that this quarters jurisdiction to consider an issue even though it was not considered by the tribunals below, but I am more doubtful whether the tribunal could be said to have erred in law by failing to consider an issue that was not raised before them and was not obvious in the Robinson since (and, I should perhaps add, that did not go to jurisdiction). The Court in Bulale appears to have been of the view that an appeal could in principle succeed in the circumstances described; but that was not put to the test, since the actual appeal was dismissed because the tribunal was found to have made a finding that it was entitled to reach as a matter of EU law."
16. The submission before us did not relate to any obvious point of Convention Law. We are not persuaded that Mr Ata's attempt to amend the grounds is legally justified but instead it is an ambition that is entirely misconceived. We are not persuaded to change our view in the light of the matters raised in the post hearing letter from Ata & Co dated 21 July 2016 which encloses what purports to be the policy in force between July 2014 and August 2015.
17. With Mr Ata no longer relying on the grounds on which permission has been granted, there is no remaining challenge to the decision by the First-tier Tribunal. This appeal is dismissed.

Signed Date: 06 September 2016

Upper Tribunal Judge Dawson