Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09870/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 3rd April 2017
On 6th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

AEA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs U Sood of Counsel
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge Telford of the First-tier Tribunal (the FtT) promulgated on 21st January 2016.
2. The Appellant is a female Nigerian citizen who entered the United Kingdom in October 2007. Her leave to enter and remain was extended on the basis that she was a student, and her leave to remain expired on 25th September 2013. A further application for leave to remain was made and refused on 9th January 2015, and on 12th January 2015 the Appellant claimed asylum.
3. Her asylum and human rights application was refused on 29th June 2015 and the Appellant’s appeal was heard by the FtT on 14th January 2016.
4. The Appellant did not have legal representation. The FtT heard oral evidence from her, and considered her claim that she would be at risk if returned to Nigeria because of her membership of a particular social group, her case being that she would be at risk of FGM.
5. The FtT found the Appellant to be an incredible witness and did not accept her claim to be at risk from her family if returned to Nigeria. The appeal was dismissed on all grounds.
6. The Appellant thereafter applied for permission to appeal to the Upper Tribunal. The Appellant was still without legal representation, and contended that the FtT had erred in not accepting that she would be at risk of being forced to undergo a second circumcision (FGM).
7. Permission to appeal was refused, and a renewed application for permission was made to the Upper Tribunal. The grounds in the renewed application were settled by Counsel.
8. In summary it was contended that the FtT had erred by allowing an unfair hearing to take place. It was contended that the FtT had failed to make enquiries as to why the Appellant was unrepresented, failed to ask whether she needed an adjournment to secure representation, and failed to ensure that the Appellant had access to the Respondent’s bundle of documents. Reference was made to the Guide for Unrepresented Appellants in the Upper Tribunal issued in September 2013. The guidance indicates that an Appellant who is unrepresented may be unfamiliar with Tribunal procedure, and it is incumbent upon a Tribunal to ensure a fair hearing for unrepresented Appellants.
9. Permission to appeal was granted by Upper Tribunal Judge Coker in the following terms;
“3. The grounds essentially assert procedural unfairness by the First-tier Tribunal Judge in failing to make enquiries why the Appellant was unrepresented, whether she required an adjournment to obtain legal representation and assert that she had no access to the Respondent’s bundle.
4. It is arguable there was procedural unfairness but even if there was the Appellant may have to address whether the error was such as to result in the findings of the First-tier Tribunal are set out aside, given in particular that no challenge is made to the findings in the grounds seeking permission.
5. Permission is granted”.
10. Following the grant of permission 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 directed itself appropriately. The FtT had explained the procedure to the Appellant, and found against the Appellant in relation to credibility, and gave cogent reasons for so doing. It was unclear, on the evidence, how the FtT could have reached a different conclusion.
11. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained a material error of law such that it should be set aside.
The Appellant’s Submissions
12. Mrs Sood relied upon the grounds contained within the application for permission to appeal, together with the Appellant’s witness statement dated 7th September 2016 which had been submitted with the renewed application for permission to appeal. Mrs Sood explained that the Appellant was not present at the Upper Tribunal hearing due to illness, but she confirmed that she had instructions to proceed and make submissions regarding error of law.
13. I was asked to find that the Appellant had not received a fair hearing. She had no legal representation, and had prepared no appeal bundle. It was submitted that the Appellant did not have the Respondent’s bundle, and because the hearing was unfair, the FtT decision should be set aside, and the appeal remitted back to the FtT to be heard afresh with no findings preserved.
The Respondent’s Submissions
14. Mr Bates relied upon the rule 24 response and pointed out that the Appellant was educated, to degree level, and had come to the United Kingdom to study. She had confirmed that she had received legal representation in the past, and she had had ample time to prepare for the FtT hearing. I was asked to note that initially the Appellant had requested that her appeal be decided on the papers without an oral hearing.
15. Mr Bates submitted that the Appellant had been given every opportunity to present her case to the FtT, but the FtT had made credibility findings against her. Even if the Appellant had had legal representation, Mr Bates submitted that this would not have altered the FtT’s credibility findings and conclusions that there were inconsistencies in the Appellant’s evidence. Mr Bates pointed to the lack of challenge to the findings which had been made by the FtT.
16. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
17. I do not find that the FtT materially erred in law for the following reasons.
18. It is without doubt incumbent upon the FtT to ensure that all parties have a fair hearing. In my view particular care is needed when an Appellant has no legal representation. However it is not suggested that in every case where there is an unrepresented Appellant, the hearing must be adjourned.
19. In this appeal, the Appellant accepts that she did not request an adjournment. It is not disputed that initially the Appellant requested that her appeal be decided on the papers. It was the Respondent who requested an oral hearing.
20. It is not disputed that the FtT explained to the Appellant the procedure that would be adopted throughout the hearing. This is confirmed at paragraph 3 of the decision. If the Appellant did not wish to proceed without legal representation it was open to her to make this known to the FtT. She did not do so.
21. It is not suggested that there were any difficulties in communication. The Appellant confirmed to the FtT that she did not require an interpreter. I have considered the Record of Proceedings as well as the decision and reasons, and it is apparent that the Appellant became upset during the proceedings, which were adjourned for approximately twenty minutes. This is an indication that the FtT was endeavouring to ensure that the Appellant could present her case and that the hearing proceeded in a fair manner.
22. The Appellant had been in the United Kingdom since October 2007. It is not the case that this appeal hearing took place very shortly after the Appellant arrived, or very shortly after she claimed asylum.
23. The Appellant waited until January 2015 to make an asylum claim, which was refused on 29th June 2015. It is apparent that the Appellant received the reasons for refusal, because she entered an appeal against that decision.
24. Her appeal was entered on 8th July 2015.
25. The appeal hearing did not take place until 14th January 2016. The Appellant had ample time to prepare her appeal. She also had ample time to obtain representation, and if she felt that she was not ready to proceed with the hearing she could have requested an adjournment.
26. When the Appellant applied for permission to appeal against the FtT decision, she had no legal representation and her application for permission was not based upon the lack of legal representation.
27. The lack of representation point was made in the renewed application for permission to appeal. The Appellant has therefore had assistance in making her application for permission, but there has been no realistic challenge to the findings made by the FtT, in which the Appellant was found to be an incredible witness.
28. I am satisfied, having carefully considered the Record of Proceedings, the FtT decision, the grounds relied upon by the Appellant, and her witness statement, that the FtT did not materially err in law in proceeding to hear the appeal. I find that the FtT made findings which were open to it on the evidence, and gave adequate reasons for those findings, and there has been no satisfactory challenge to the findings that have been made.

Notice of Decision
The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.
Anonymity
An anonymity direction was made by the FtT. I continue that direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. No fee has been paid or is payable. There is no fee award.

Signed Date 3rd April 2017

Deputy Upper Tribunal Judge M A Hall