Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/10055/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 06 October 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

evan grant
(anonymity direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Boateng, Solicitor Advocate of Messrs Ansah Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This application for permission to appeal to the Upper Tribunal is refused.

Reasons
2. The appellant is a citizen of Jamaica born on 14 May 1974 who appeals against a decision of Judge of the First-tier Tribunal Keane promulgated on 7 August 2015 in which he dismissed the appellant's appeal against a decision made by the Secretary of State on 31 October 2014 to make a deportation order against him as a result of his criminal offending.
3. The application had previously been considered in the First-tier Tribunal by Judge of the First-tier Tribunal Pooler who found that not only was the application made out of time and that it was inappropriate to extend time but also that there was no merit in the application made.
4. The appellant entered Britain in October 1981 having been granted indefinite leave to enter in order to join his mother here. Between 1989 and November 2013 he acquired ten convictions for 26 offences. The decision to deport was made after he had been convicted of seven breaches of a non-molestation order prohibiting contacting his former partner. He was sentenced to 26 weeks' imprisonment. Previous offences had included a conviction on 26 September 1997 for armed robbery. The sentence on that occasion was four years' imprisonment. The offence had involved him stealing money from a female victim after threatening her with a sawn off shotgun. Concurrent sentences were imposed for possession of a firearm. In 2009 he had been involved in the attempted murder and robbery of two elderly women.
5. The appellant did not attend the hearing of his appeal before Judge Keane on 22 July 2015 and no representative was instructed to appear on his behalf. Judge Keane took into account the appellant's history of offending and also noted that he had six children in the United Kingdom with an age range of between 6 to 18. He also noted the appellant's claim that he was bisexual.
6. The judge heard evidence from a Detective Constable Burton who had characterised the appellant as an exceptionally dangerous individual prepared to act violently and to prey upon the weak and vulnerable. He told the court of incidents which had taken place in one day in which the appellant and accomplice had robbed four individuals in four separate incidents.
7. Judge Keane found that the appellant was a particularly dangerous criminal and likely to commit serious crimes if he were at liberty. He noted there was no evidence provided as to the circumstances of the appellant's relationship with his many children nor of any risk he would suffer by reason of his unsubstantiated claim to be bisexual. He found there was an overwhelming public interest in deporting the appellant.
8. The determination of Judge Keane was promulgated on 7 August 2015. It was not until 16 February 2016 that an application was made for permission to appeal in the First-tier. That application, as I have stated above, was refused and not admitted by Judge Pooler. The grounds of application asserted that the notice of hearing had not been served on the applicant as required under the Rules and further asserted that the applicant had written to the Tribunal to advice of his change of address and that he had asserted that he had not received any hearing notice from the Tribunal. The grounds stated that the appellant had lived in Britain since the age of 7 and that he was now 42 and that all members of his family, including his children, lived in Britain. They stated that the fact that the Tribunal received a letter from the appellant's previous representatives that they were not acting for him, the Tribunal "could have at least endeavour (sic) to telephone him to ascertain his position". It was stated that the appellant reported regularly to the Home Office and had been making enquiries "with the immigration" as to the date of his appeal. It was asserted that he had not received a fair trial.
9. The grounds were renewed in the Upper Tribunal. Unusually it was decided that an oral hearing would be appropriate. Upper Tribunal Judge Jordan gave directions on 15 April 2016 in which he noted that notice of hearing for a case management review had been served on the appellant's then representatives, JCWI, and on the appellant whose address for service was given as c/o JCWI and that Ms Burgess of JCWI had appeared on behalf of the appellant on 15 December at the case management review. Following that hearing directions had been sent to JCWI and to the appellant c/o JCWI. Notice for the hearing on 20 May was sent to JCWI and to the appellant c/o JCWI but that neither had attended. Further directions had been sent to JCWI on 27 May and the notice of hearing for 22 and 23 July 2015 sent to JCWI and the appellant c/o JCWI. There was no appearance by or on behalf of the appellant on 22 July 2015 and the judge had been satisfied that there had been proof of proper service and the hearing had proceeded. It was noted that the appellant's solicitors had written to JCWI who had replied on 12 February 2016 to state that the appellant was not formally a client of theirs as he had not provided them with either proof of means or instructions and that they had forwarded all documents to the address he provided by recorded delivery. That had been returned marked "not called for".
10. The directions given by Judge Jordan stated that either JCWI had misrepresented the position when they had attended the case management review or in the letter of 12 February 2016 when they stated that they had not had instructions from the appellant. The directions criticised JCWI for allowing that organisation to be used as the address for service of correspondence and failing to notify the Tribunal either that they had never had, or no longer had instructions from the appellant when documents were served on them. The directions also stated that JCWI had failed to notify the Tribunal that they had been forwarding letters to the appellant which had been returned marked "not called for" when they were aware that the Tribunal reasonably believed that the appellant had been properly served at the only address that had been provided for service. It was directed therefore that a senior representative of JCWI was required to attend the hearing and also that the appellant attend and that JCWI should explain whether or not the assertions made in the preamble to directions were correct.
11. JCWI then wrote to the Upper Tribunal on 24 June including evidence from three witnesses explaining what had happened. Ms Burgess in particular had described how she had attended on the appellant where he was detained in October 2014 at which time he had been eligible for legal aid. He had then been granted bail and had been requested to provide proof of means in order to confirm his financial eligibility for legal aid. An appointment had been made which the appellant failed to attend. However, following the decision to deport him he had attended the offices of JCWI and instructed that an appeal be launched, although he did not provide confirmation of his means. JCWI had attended the CMR on 15 December 2014 on the appellant's promise that he would provide proof of means. Thereafter there had been a series of missed appointments such that by 20 May 2015, on the hearing of the case management review, JCWI had felt compelled to attend in order to safeguard the appellant's position. There were then other failed appointments and the appellant had failed to provide the requested proof of means. Six weeks before the hearing JCWI had contacted the appellant but he had failed to respond or provide proof of means. In those circumstances JCWI had been unable to continue to represent the appellant. Moreover, the appellant had failed to notify JCWI that his uncle was no longer supporting him and that he had changed address. JCWI effectively had done as best as they could by seeking to notify the appellant at his latest address provided to them by the respondent. As there was no response, JCWI could do no other than cease to act for the appellant. They had written to the appellant to that effect and notified the Tribunal that they were no longer acting. An attempt had been made to deliver a letter by special delivery prior to the hearing.
12. It is of note that on 12 February 2016 JCWI had written to the appellant's present representatives explaining that notwithstanding numerous attempts to seek proof of means the appellant had failed to comply and that two attendances before the Tribunal would be conducted without payment in order to safeguard the appellant's position. Until they secured legal aid they could not formally act on his behalf. It was evident that the final letter which had been marked "not called for" had been returned to JCWI in September 2015 and therefore they had not been in a position to inform the Tribunal prior to the hearing there had been no effective service.
13. Copies of the documentary evidence from JCWI and their various attachments were sent by the Upper Tribunal to both solicitors and the appellant.
14. The application was set down for an oral hearing on 11 July but that was later adjourned by the Tribunal of its own motion. Unfortunately, that was not drawn to the attention of Judge Jordan who considered the application on 11 July without representatives being present and dismissed the application. His decision however was set aside by Upper Tribunal Judge Goldstein on 8 August 2016. The application then came before me on 12 September 2016 when Mr Boateng appeared on behalf of the applicant and Mr Melvin appeared on behalf of the Secretary of State.
15. I asked Mr Boateng what evidence there was that the appellant had himself contacted the Tribunal before the hearing on 22 July 2015. He was unable to produce any such evidence. He endeavoured to explain that the appellant's uncle had notified JCWI that he could no longer support the appellant but then indicated that that had been in January this year. He argued however that as the appellant had been reporting to the Home Office and that, in that way, he asserted JCWI had been able to send to him the determination of Judge Keane, the Tribunal should have taken steps to contact the appellant through the Home Office. However, he could produce no legal authority for that assertion. When pressed, he stated that he had no evidence to back up the various assertions which had been made in the grounds of application. His argument appeared to focus on the assertion that attempts should have been made to contact the appellant and that the fact that he was not present at his hearing meant that he did not have a fair trial.
16. The issue before me is whether or not there is an arguable error of law in the determination of Judge Keane. The grounds of appeal do not argue that there was an error of law with regard to the substance of the decision - they merely repeat various factors which the judge was required to take into consideration and it is clear from the determination that he did take those factors into account. The reality is that the sole issue is whether or not the judge erred by proceeding to hear the appeal in the absence of the appellant.
17. It is clear however that he had no other option other than to determine the appeal on the evidence before him. Proper service had been made on the appellant's representative and the Tribunal had no address for the appellant himself. JCWI had endeavoured to contact the appellant at the address which he had given to them. It was not until after the hearing that they were aware that their letter had been returned marked "not called for". JCWI were therefore not in a position to inform the Tribunal prior to the hearing that they had been unable to contact the appellant. The reality is that both the Tribunal and JCWI took all steps which they could take to ensure that the appellant was informed of the hearing. The fact that the appellant did not tell the Tribunal of his address and did not respond to correspondence from JCWI and did not keep in touch with them is entirely his responsibility. There was simply no error of law in Judge Keane going on to determine the appeal and it would be inappropriate for his decision to be set aside.
18. Accordingly this application for permission to appeal to the Upper Tribunal is refused.

Signed Date 06 October 2016

Upper Tribunal Judge McGeachy