Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10597/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September 2016
On 12 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

as
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Talacchi, Counsel.
For the Respondent: Mr S Whitwell, Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge R Sullivan) dismissing her appeal against the respondent's decision made on 26 November 2014 refusing her claim for asylum and deciding to remove her.

Background
2. The appellant is a citizen of the Philippines born on 28 August 1989. She first arrived in the UK with her mother on 14 April 2005 with entry clearance as a visitor valid until 21 September 2005. She overstayed and on 14 May 2012 applied for leave to remain outside the rules but this application was rejected because of problems with the completion of the application form -and the payment of the relevant fee. On 4 July 2012 she made a further application but this was refused on 16 December 2013 and a subsequent appeal was dismissed with permission to appeal being refused. The appellant was detained on 13 October 2014 and then made a further application on 24 October 2014 for leave to remain but this was refused with no right of appeal on 7 November 2014. On 30 October 2014 the appellant was served with removal directions and she claimed asylum on 6 November 2014. Her application was refused on 26 November 2014.
3. The appellant based her claim on her fear of people her father owed money to, of traffickers who had facilitated her journey to the UK and of the former partner of her maternal aunt with whom her father had had an extramarital relationship. She also included with her documents submitted in support of her claim materials about LGBT issues in the Philippines, having disclosed in her interview that she was a lesbian. The respondent did not accept that the appellant and her family had been threatened by any agency in the Philippines or in the UK or that there was any risk from her aunt's partner. She also found that there was no evidence of any risk arising from the appellant's sexual identity on return to the Philippines.
4. The appeal to the First-tier Tribunal against this decision was listed on 6 January 2016 but was adjourned for investigation of the appellant's claim to have been trafficked, the Tribunal directing that the competent authority make a decision whether she was a victim of trafficking or not within a period of six weeks. The matter was re-listed for hearing on 30 March 2016 but that hearing was converted to a case management review as the respondent had been unable to obtain the appellant's consent to enable the referral process to take place.
5. The appeal was re-listed for hearing on 24 May 2016 when there was no appearance by or on behalf of the appellant. The judge noted that notice of the hearing had been sent to the appellant on 30 March 2016 at the address she had provided for service and had not been returned undelivered. There had been no message to explain her non-attendance. The respondent's representative told the judge that a letter had been sent to the appellant on 11 May 2016 seeking information about her claim that she had been trafficked but there was no record of a response. The address was the same as that used by the Tribunal for service of the notice of hearing. At the judge's request the presenting officer made enquiries to confirm whether or not there had been a response to the letter dated 11 May 2016 but he was unable to obtain any further information.
6. The judge took into account the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and decided in the light of the time and opportunities the appellant had had to state and support her case that it was in the interests of justice to hear the appeal in her absence. The judge went on to consider the evidence and for the reasons she gave found that the appellant had failed to show that she was entitled to asylum or humanitarian protection or that removing her would be in breach of her human rights.
The Grounds and Submissions
7. In her grounds of appeal the appellant said that she had lost the hearing notice but had gone to the Tribunal on 25 May 2016 to make enquiries and had also called the Home Office about the hearing. She had sent an apology letter both to the Tribunal and to the Home Office. She had given her consent to the trafficking referral and had cooperated. The grounds then go on to challenge the findings made by the judge.
8. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal on the basis that:
"The grounds are arguable in view of the indication on the case file that the appellant attended the previous two hearings of her appeal which were adjourned at the respondent's request, as well as the fact that she has now been substantively interviewed by the respondent regarding her claims, which adds some weight to her arguments. There are indicators that the appellant is potentially a vulnerable person and one would hope that she obtains competent legal representation at the earliest opportunity."
9. Mr Talacchi accepted that the appellant had not attended the hearing but submitted that an adequate explanation had been given. The appellant had attended the hearing centre on 25 May 2016, the day after the hearing, and had written a letter of apology to the court. Further, this was not a case where the appellant had failed to co-operate with the trafficking referral which had been proceeding.
10. Mr Whitwell submitted that her failure to attend should be looked at in the context of the appellant's immigration history, as she was someone who was familiar with the appellate process. This appeared to be a case, so he submitted, of someone who had simply forgotten about the hearing but that in itself was not a good reason for the judge not to proceed. The costs thrown away should be properly taken into account as a relevant even if not a determinative factor. He accepted that progress had been made on the trafficking referral but there had been a lack of willingness by the appellant to progress matters.
11. In reply Mr Talacchi argued that it could properly be inferred that the appellant had co-operated with those enquiries. She had been interviewed by the relevant authorities and must have responded to the letter of 11 May 2016. This was not a case of someone intentionally avoiding the hearing or of failing to co-operate.

Consideration of whether the judge erred in law
12 I must consider whether the First-tier Tribunal erred in law by proceeding with the hearing in the absence of the appellant. It is not in dispute that the appellant did not attend the hearing on 24 May 2016. It is her assertion that she had lost her notice of hearing and made enquiries but received no further information. She says that she wrote to the Tribunal and this is confirmed by a letter on the appeal file marked as received on 1 June 2016 from the appellant saying that:
"We owe the judge and the court an apology. We have lost the letter of our schedule of our hearing, we did call the Home Office days before they couldn't give us any date because we have provided them with the old Home Office reference number and that they had decided to go to the hearing on 25 May which was not their date."
The letter goes on to sincerely apologise. It requests understanding and expresses the appellant's concern about her mother and sister. It confirms that her father had taken a photograph as evidence they had gone to the Tribunal on 25 May 2016, which is enclosed with the letter although there is nothing in the photograph to confirm the date of attending the hearing centre. The letter was seen by Judge Sullivan on 2 June 2016 and is so endorsed. However, by that time the judge had sent has dated her decision dated 31 May 2016 for issue and it was promulgated on 2 June 2016. At the stage the judge saw the letter, she was not in a position to recall the decision should she have been minded to do so.
13. It is clear from the judge's decision that she proceeded with the hearing because there was no message to explain the appellant's non-attendance at the hearing [2] and it appeared that the appellant had not co-operated in the process of the trafficking referral, had withheld her signature from a consent form for several months and had failed to respond to a written request for information [26].
14. Whilst there must be concerns about the appellant's account of losing the notice of hearing and then going to the hearing centre on the day after the hearing had taken place, these must be set against the fact that she had attended the hearing on 6 January 2016 and I was told and accept that her father had attended on her behalf on 30 March 2016. When she did find out about the date of hearing she wrote a letter to the Tribunal received on 1 June 2016 and, although the judge saw it, the timing was such that she had already sent her decision for issue.
15. The judge also took into account the fact that the appellant appeared not to have co-operated in the trafficking referral process but that position has been clarified in submissions before me. It is now clear that the competent authorities were considering the matter in June 2016 and it can reasonably be inferred that the appellant, whatever had happened previously, was co-operating at that stage. I am therefore satisfied that when considering whether to proceed with the hearing the judge proceeded, albeit through no fault of hers, on a mistaken factual basis causing unfairness: E v Secretary of State [2004] EWCA Civ 49.
16. I have taken into account Mr Whitwell's submissions about the need to consider the appeal in the light of the immigration history as a whole and not to leave out of account the costs implications but I am satisfied in the circumstances of this case that the interests of justice must prevail over those factors and that the appellant should have the opportunity of attending a hearing so that any issues arising not only from her appeal against the asylum decision but also from the decision of the competent authority on the issue of trafficking, if relevant, can be fully explored.
Decision
17. For these reasons I am satisfied that the First-tier Tribunal erred in law by proceeding in the absence of the appellant. The decision is set aside. Both representatives accepted that in these circumstances the appeal should be remitted to the First-tier Tribunal for a full re-hearing before a different judge. No application has been made to vary or discharge the anonymity order made by the First-tier Tribunal, which remains in force.

Signed H J E Latter Date: 9 September 2016

Deputy Upper Tribunal Judge Latter