Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa109352014

THE IMMIGRATION ACTS

Heard at Hatton Cross
Decision & Reasons Promulgated
On 14 March 2016
On 16 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

[F M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wilkins, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Ms Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, [FM], was born on [ ] 1980 and is a male citizen of the Democratic Republic of Congo (DRC). He arrived in the United Kingdom in November 2004 when he claimed asylum. His claim was rejected and a subsequent appeal was dismissed in April 2005. Some time later, the appellant was arrested and imprisoned in 2009 for attempting to leave the country with a false document. His appeal against deportation was dismissed. However, attempts to remove the appellant in April 2010 proved impossible when the appellant resisted removal. The appellant was eventually removed the same year but returned by the authorities of DRC because he told them that he was a citizen of Mozambique. There were subsequent judicial review proceedings which were compromised on the basis that the appellant had made a further application on human rights grounds to the Secretary of State. His application was refused on 27 November 2014 and the appellant appealed to the First-tier Tribunal (Judge Robson) which, in a decision promulgated on 27 July 2015 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appeal hearing in the Upper Tribunal (20 May 2015) took place immediately before the promulgation by the Upper Tribunal of country guidance in BM and Others (returnees - criminal non-criminal) DRC CG [2015] 00293 (IAC). Quite properly, following the promulgation of BM (which took place before the promulgation of his own decision) the judge reconvened the hearing for the parties to make their submissions as regards the effect of the new country guidance in this particular appellant's case. However, the judge limited the hearing to submissions only recording at [57]:
"However, Ms Wilkins then asked me for permission to call further evidence, this time from APERICO (UK). I declined to accept further evidence since I considered that was inappropriate. There was no proof of evidence and as I directed, this present hearing should proceed solely on submissions. I note that there was in fact a representative from APERICO (UK) present in court."
3. The judge acted in accordance with procedure but it is certainly arguable that he failed to act fairly. He was not obliged to hear the oral evidence of an individual who had not supplied a witness statement in advance but, had the judge considered this the only problem, it could no doubt have been overcome by a very brief adjournment on the day of the second hearing so that a written statement might be prepared in manuscript, if necessary. Further, the judge appears to have been unnecessarily rigid by, in the first instance, listing the second hearing for submissions only (when he did not know in what ways the new country guidance might impact upon the appellant's appeal) and then maintaining that position when an application was made on the day for further evidence to be adduced. The judge does no more than to say that he considered accepting further evidence to be "inappropriate" relying on the fact that there was no written proof of evidence and that he had directed that there should be submissions only. It is quite right for judges to require representatives to comply with the relevant Procedure Rules but a judge should always be mindful of the need, above all else, to conduct a hearing fairly. The respondent had accepted that the appellant was a member of APERICO (UK) but at [85] the judge criticised the appellant for failing to arrange for a representative of the organisation to attend the (first) hearing before the First-tier Tribunal and did not accept the explanation given by the appellant for his non-attendance. That criticism seems harsh given that a representative duly attended at the second hearing and was available to give evidence; if the failure of the appellant to adduce evidence from a representative of APERICO was of such concern to the judge then it is surprising that he did not allow the representative to give his testimony. Had the judge dismissed the appellant's appeal having heard evidence from the representative then, on this particular point, the appellant could have had no complaint. I hesitate before interfering with the decision of a First-tier Tribunal Judge as regards the conduct of the proceedings before him but, in this particular instance, I find that the judge did fall into error. The judge could have met the overriding objective (there was, for example, no reason to suppose that hearing oral evidence would have greatly inconvenienced other court users on the day of the second hearing) had he conceded to the request for further evidence to be adduced.
4. There is a further problem with the judge's decision. At [106(iii)] the judge wrote:
"Neither that the appellant's name nor her photographic image have been published on the APERICO (UK) website at any time [the judge is here quoting from BM). Whilst I have seen photographs of the appellant attending a demonstration at a meeting it has not been submitted to me that a photographic image of the appellant was published on the APERICO (UK) website at any time"
I am satisfied that that, as submitted by Ms Wilkins, is not an accurate statement of the facts. The judge was told at the second hearing that the photographs of the appellant participating in APERICO events in the United Kingdom have been published on line and he had been provided with the URL of the website where the photographs might be accessed.
5. The grounds also complain that a drug (risperidone) which the Secretary of State in her refusal letter had asserted was available in DRC had not been properly evidenced. The appellant suffers from mental health difficulties for which he takes this drug. I am not satisfied that the judge erred in this treatment of this aspect of the case. The refusal letter does refer to a "March 2010 revision of the national lists of essential medicines for DRC" as the source of her assertion as regards this drug; if the appellant disagreed with the assertion, that he should have put in evidence to rebut the assertion.
6. However, for the reasons I have given above, I am satisfied that the decision of the judge should be set aside and the matter remitted to the First-tier Tribunal where a new fact-finding exercise may best be undertaken. This appellant has had a regrettably lengthy litigation history and it is to be hoped that on the next occasion in the First-tier Tribunal a definitive determination of his appeal may be achieved.
Notice of Decision

The decision of the First-tier Tribunal promulgated on 24 July 2015 is set aside. None of the findings of fact shall stand. The appeal is remitted to the First-tier Tribunal (not Judge Robson) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed Date 1 June 2016

Upper Tribunal Judge Clive Lane