Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10449/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 10 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

AA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss O Taiwo (legal representative), UK Law Solicitors
For the Respondent: Mr C Tarlow

DECISION AND REASONS

1. The appellant is a citizen of Ethiopia born on [ ] 1995 of Oromo ethnicity. He left Ethiopia in June 2014 and arrived in this country on 8 February 2015 and applied for asylum. This application was refused on 14 July 2015.

2. The appellant appealed on 27 July 2015.

3. The appeal came before a First-tier Judge on 7 March 2016. There was no appearance by or on behalf of the appellant at the hearing. In the absence of an explanation for non-attendance the judge gave his reasons for dismissing the appeal in the following two paragraphs:

"14. The burden of proof in relation to the facts arising in connection with this appeal rests upon the appellant. He has provided no documentation or information or any submissions as to why the appeal should be allowed. Nor has he chosen to attend the appeal hearing or be represented by the solicitors who are still on the record as acting for him. All that undermines his credibility.

15. Save as to the basic grounds of appeal (which do no more than disagree with the respondent's decision), the respondent's decision goes unchallenged. On the face of it the respondent's lengthy reasons for the decision are clearly argued in some detail. That puts the onus fairly on the appellant to answer them and, in the absence of any evidence to the contrary, the appeal must be dismissed."

4. The appellant applied for permission to appeal. It was pointed out that the appeal was originally listed for hearing on 11 May 2016 but was subsequently brought forward to 7 March 2016. The representatives admitted their mistake in overlooking the revised date. It was not the appellant's fault. The appellant had not been informed of the date of hearing - as far as the appellant was concerned the date of hearing was 11 May 2016. Under the Rules it was important to have regard to the interests of justice.

5. Miss Taiwo admitted that the representatives were at fault. However the appellant like many asylum seekers was dispersed and would not have received the revised notice of hearing.

6. The judge had not properly had regard to the interview record and other matters and had relied solely on the respondent's decision for finding the appellant to be incredible.

7. Mr Tarlow agreed with the submissions that the judge had not had regard to the interview record and proper reasons had not been given for the decision. He agreed that the appeal should be remitted for a fresh hearing to the First-tier Tribunal.

8. Both the representatives were agreed as to the outcome. I note that the representatives had faxed a letter to the Tribunal on 8 March 2016 as soon as they had been aware of the mistake. This document did reach the First-tier Judge and he had recorded that the decision was already promulgated and accordingly the communication was too late. The note is dated 10 March 2016.

9. The decision was in fact promulgated on 14 March 2016.

10. Of course where a decision has been reached by a Tribunal and a case has proceeded in the absence of a party due to the mistake of that party or the party's representatives, it does not necessarily follow that the determination is flawed in law - see Al-Mehdawi v Secretary of State [1989] UKHL 7. However, irrespective of the point acknowledged by Mr Tarlow that the decision lacked proper reasoning, the circumstances can in my view be distinguished from those in Al-Mehdawi. In this case the judge was advised very shortly after he had completed the decision and before it was promulgated that there had been a mistake on the part of the representatives. In those circumstances it would have been open to the judge in my view to reconsider the matter and recall the decision prior to promulgation. In the particular circumstances where the appellant had not been at fault in any way and where the blame lay entirely with the representatives, the judge could and in my respectful view should have decided it was not in the interests of justice to leave matters as they were.

11. In any event Mr Tarlow does not seek to support the determination and in my view he was right not to do so.

12. For the reasons I have given and by agreement between the parties the appeal is allowed and remitted for a fresh hearing to the First-tier Tribunal before a different First-tier Judge.

13. The appeal is allowed as indicated.

Direction Regarding Anonymity - 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 him or any member of their 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.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made no fee award and I make none

Signed Date 9 August 2016

G Warr
Judge of the Upper Tribunal