Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa109812015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 13th June 2016

Before

upper tribunal DePUTY judge ROBERTS

Between

Z.E.M.
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Franco, (Counsel)
For the Respondent: Mr Norton, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant a citizen of Lebanon appeals with permission against the decision of a First-tier Tribunal (Judge Clarke) which in a decision promulgated on 7th March 2016 dismissed the Appellant's appeal on asylum, humanitarian protection and human rights grounds.
2. The Appellant's claim to international protection is that she is under threat from Hezbollah in Lebanon, on account of her husband refusing to join them and fight with them in Syria.
Background
3. The Appellant's appeal came before the First-tier Tribunal on 22nd February 2016 at Harmondsworth. This was the date that had been set down for a substantive hearing. Despite indicating, in a pre-hearing review document, that she wished to give evidence at an oral hearing, neither the Appellant nor her representative attended on that date. The judge proceeded in the absence of the Appellant and dismissed her appeal.
4. The judge noted in his decision at [52]
"I make an adverse inference against the Appellant for failing to attend her appeal or forward an explanation for her non-attendance to the Tribunal. I also make this adverse inference because the Appellant's solicitors failed to attend the hearing or contact the Tribunal in any way to explain why neither they nor their client were in attendance. This failure is compounded by the fact that the Appellant's solicitors on 18th February 2016 - two working days before the appeal - sent a fax to the Tribunal confirming the client's address and asking for their client's address to be updated on the Tribunal records. I found the contents of the fax to be somewhat odd as the address that was provided for the Appellant is the same address that has been held throughout the proceedings by the Tribunal. To ask the Tribunal to 'kindly update your system accordingly' (sic) when the address was already held by the Tribunal, on the face of it and without further explanation makes little sense."
5. Permission to appeal was sought on the basis that the appellant had been deprived of the opportunity of a fair hearing. In seeking permission from the FtT, it was claimed that the judge had erred in law by proceeding in the Appellant's absence when neither she nor her representative had been given notice of the hearing date. Permission was refused by the FtT. It was said that it was clear that the Appellant received a notice of the pre-hearing review which included the "notice of an adjourned hearing" specifying 22nd February 2016 as the hearing date.
6. There was also before the FtT when refusing permission, a series of fax letters transmitted by the Appellant's representatives, dated 30th December 2015 showing
they had come on record;
apparently acknowledging they had been sent notice of the hearing date of 22nd February 2016.
7. Following refusal of permission by the FtT, the Appellant renewed her application before the Upper Tribunal. The renewed application came before Upper Tribunal Judge Southern who, after consideration, granted permission in the following terms:
"The challenge being pursued is a narrow one. It is said there was uncertainty as to the correct date of the hearing such that on the day upon which this appeal was in fact determined, neither the appellant nor her representatives were present, although they would have been had they been aware of the listing of the appeal.
The ground go too far in saying that, as the appellant did not appear and was not represented 'the judge was obliged, in the interests of justice and fairness, to adjourn the hearing and direct that the Appellant provide an explanation for his absence'. However, considered as a whole, the grounds give rise to an uneasy feeling that something has gone seriously wrong in this appeal. The grounds are unacceptably ambiguous as to what was and what was not received by the appellant and by her solicitors. That ambiguity must be eliminated. On the other hand, the grounds assert also that:
"? we had received three dates of hearings. To clarify which was the exact relevant date we phoned to the court and also sent two faxes but we never got a reply from the court ?"
If that which is asserted can be established, then it is arguable that there has been a procedural irregularity such as to amount to an error of law. On that basis, permission is granted.
Directions: Not later than 3 working days before the date of the hearing before the Upper Tribunal, the appellant is to file with the Upper Tribunal and serve upon the respondent an indexed, paginated bundle of all documentary evidence to be relied upon which must make completely clear (1) which documents are accepted to have been received by the appellant; (2) which documents are accepted to have been received by the appellant's representatives and (3) which documents, now known to be sent out by the First-tier Tribunal (if any) were received by neither the appellant nor her representatives."
Thus the matter comes before me to determine if the FTT's decision discloses an error of law requiring the decision to be set aside and remade.
The UT Hearing
8. Before me Mr Franco appeared for the Appellant and Mr Norton for the Respondent. Mr Franco made submissions along these lines. He said that the Appellant speaks no English. On 15th December 2015 she received three notices in the post. Two notices informed her that the hearings fixed for 22nd April 2016 and 26th April 2016 were adjourned. Both those notices said that a ' new notice of hearing' would follow in due course. However she also received on 15th December 2015 a combined notice of a pre-hearing review/full hearing notice fixed for 22nd February 2016. That latter notice did not come in 'due course' it came at the same time as the other two notices. It would seem that the later hearing dates had been adjourned and the case brought forward to 22nd February 2016 to utilise available court time.
9. At the time the Appellant received these notices she did not have representatives. Therefore the notices were sent to her directly. She instructed her representatives on 23rd December 2015 and a fax transmission was sent by her solicitors on 30th December 2015 to the Tribunal at Hatton Cross, stating that they had now come on record to act as her representatives.
10. For some reason, the Appellant's representatives faxed the Tribunal Service on 15th January 2016 and again on 10th February 2016 stating they had not received the notice of hearing. They requested that they be served with that notice, but received no response to their fax letters.
11. Mr Franco said that because the Appellant did not speak English she was unaware that she must attend the Tribunal hearing on 22nd February 2016. It had been her intention all along to attend and give oral evidence on her own behalf. She relied upon her representatives to keep her informed.
12. So far as the fax transmission apparently sent by her representatives to the Tribunal Service on 30th December 2015 is concerned, Mr Franco was unable to explain who signed Box 6 of the PHR form. That form is signed acknowledging that Roli Solicitors now represent the appellant. That form is attached to a series of faxes showing the hearing date of 22 February 2016. There was a representative from the solicitors firm at the hearing before me. That representative could not identify who it was who had apparently signed Box 6 "on behalf of client".
Error of Law
13. I am bound to observe that whilst I can accept that the Appellant placed reliance on her representatives to inform her of any hearing date, there has to date, not been any satisfactory explanation from those representatives as to why they seemingly acknowledged by fax on 30th December 2015, the hearing date of 22nd February 2016. Nor is there any satisfactory explanation as to why they started to send fax letters on 15th January and 10th February 2016 claiming they had not received notice of the hearing date of 22nd February 2016.
14. As I said in paragraph 12 above, a representative from the solicitors' office was present at the hearing before me. Mr Franco took instructions but no explanation was forthcoming to shed any light on the identity of who signed Box 6 of the AI 29 form.
15. I am satisfied, however that there has been a lack of communication somewhere along the line - possibly between the Appellant and her representatives.
16. I am also satisfied because Mr Franco tells me so, that the Appellant speaks no English and there is a possibility that receiving three notices in the way she did caused confusion in her mind. I am further satisfied that it has always been the Appellant's wish to have her case dealt by way of an oral hearing; one where she can attend and take the opportunity to give evidence in person.
17. On that basis alone I am satisfied it is in the interests of justice and fairness to set aside the decision of the First-tier Tribunal Judge and direct that a fresh rehearing of the appeal take place before the First-tier Tribunal at Hatton Cross.
18. I stress in reaching this decision, I make no criticism of the First-tier Tribunal Judge who originally dealt with this matter. The course of events however has meant that the Appellant has been deprived of an opportunity to give evidence to support her claim when she clearly wishes to do so. The original First-tier Tribunal Judge was not aware of all the information which I had before me.
19. I am grateful to Mr Norton who in addressing me agreed that remittal of this matter to the First-tier is the appropriate course of disposal of this appeal.

Notice of Decision

The decision of the First-tier Tribunal is set aside for procedural irregularity amounting to an error of law. None of the findings of fact shall stand. The appeal shall be considered de novo by the First-tier Tribunal (not Judge Clarke) and that Tribunal shall remake the decision.

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 them 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.

Signed C E Roberts Date 10 June 2016

Upper Tribunal Deputy Judge Roberts