Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
AA/11315/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 23rd January 2017
On: 22nd February 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

RO
(anonymity direction made)
Appellant

And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Rashid, Counsel instructed by MIT Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan born in 1977. When her protection appeal came before the First-tier Tribunal (Judge Birrell) on the 8th August 2016 her then representative applied for the proceedings to be adjourned. Judge Birrell refused and went on to dismiss the appeal on all grounds. The Appellant now challenges both the substantive findings made and the procedural matter of the refused adjournment.

Background

2. The chronology of events leading up the First-tier Tribunal hearing is as follows:

16th December 2011 Appellant arrived in the United Kingdom

26th February 2015 Appellant claimed asylum, screening interview
conducted at the ASU. Denied any physical or
mental health problems. Appellant's husband also
interviewed - made no mention of his wife having
any mental health problems. The basis of the claim
advanced was that the couple had married for love
and that as a result they and their children were at
risk in Pakistan from the Appellant's family who
had promised her in marriage to another man

21st July 2015 Appellant's substantive asylum interview.
Indicated that she was fit and well. Her husband
and two children were accepted to be dependents
on her claim. Gave an account in an interview
lasting 2 hours 45 minutes

4th August 2015 Respondent refuses to grant protection

18th August 2015 Appeal lodged

19th February 2016 At a Case Management Review (CMR) hearing
before Designated Judge of the First-tier Tribunal
McClure the Appellant indicated that she was
pregnant and would like the substantive appeal
delayed until after the birth

4th March 2016 The substantive appeal listed for this date was
vacated upon receipt of confirmation that the
Appellant was pregnant with an estimated date of
delivery of the 17th March 2016

11th May 2016 Verax Solicitors wrote to the Tribunal to indicate
that they were now instructed. The letter advised
that the Appellant was "not mentally stable" and
that they were unable to take instructions. Clinical
Psychologist Dr John Owen had indicated that in
his professional opinion the Appellant was not able
to engage in her legal proceedings.

18th May 2016 Verax Solicitors wrote to the Tribunal enclosing
completed report by Dr Owen. Dr Owen saw the
Appellant for one hour on the 11th May 2016.
During that time he conducted a psychometric
assessment of her mood and anxiety levels. He
recorded the Appellant's contention that she and her husband had become estranged, and his own observation that her mood was "objectively low". She attributed her low mood to the difficulties in her relationship and Dr Owen accepted that this was the likely cause. He diagnosed a depressive episode and suggested that she approach her GP with a view to being referred for counselling and/or CBT. He concluded:

"In my clinical opinion the client is not fit to competently engage in legal proceedings at the present time, as a direct result of her depressive illness. This is because the mood problems are having a noticeable effect on her cognitive functioning (in particular the effects on her memory functioning and her ability to concentrate). This should improve with the correct treatment.

Psychological therapy for depression (both CBT and counselling) typically takes 3-6 months. Treatment with antidepressants can also take a number of months before having a significant and stable effect on symptoms. Therefore, in my opinion it will be 6-9 months before the client may be able to competently engage in the legal proceedings"

20th May 2016 The substantive appeal listed for this date was
adjourned. Judge McClure gave directions that the
Appellant's representatives were to supply the
Tribunal with evidence of a treatment plan and
confirmation that the Appellant was actually
receiving treatment

8th August 2016 Verax Solicitors wrote in response to Judge
McClure's directions. They indicated that they had
been unable to obtain any evidence of a treatment
plan from the Appellant or her doctor. They had
been informed, by way of letter dated 4th August
2016, that she had been started on antidepressants
and that she had been referred to a counsellor but
had missed her last appointment. That letter, from
the Appellant's GP was attached. Verax advised
that they were unable to take instructions from the Appellant but in view of the fact that the matter had twice been adjourned they were reluctant to make another application for an adjournment. They had therefore advised the Appellant to attend the hearing of the appeal listed for the 8th August 2016.

Hearing listed before Judge Birrell.

3. The Appellant attended the hearing with a legal representative, Mr Kamran. He applied for an adjournment. He relied on the report prepared by Dr Owen and indicated that the Appellant might be in a position to take part in the proceedings in 6-9 months' time. The Home Office Presenting Officer opposed the application. She submitted that the appeal could proceed without the evidence of the Appellant if necessary, pointing out that her husband, a dependent on the claim, was present and could speak to all the material history relied upon in the claim. Mr Kamran sought instructions on this suggestion then informed the Tribunal that the Appellant's husband would not give evidence as their relationship had broken down.

4. Judge Birrell directed herself to consider the terms of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and the guidance given in Nwaigwe (adjournment; fairness) [2014] UKUT 00418 (IAC). Having done so Judge Birrell found herself satisfied that the Appellant could have a fair and just hearing in the absence of any further adjournment. She took into account the following factors. First, it is always possible to hear a case without hearing from the Appellant if they are unable, for whatever reason, to give evidence. She did not accept that the Appellant's husband was unable to give evidence, but found that the case could be justly determined without his participation because there was a full and careful record of the claim already recorded in the papers. Second, the evidence that the Appellant was not "fit" to give evidence was unsatisfactory. There had been no mention made at the CMR, or in subsequent correspondence, that the Appellant had mental health difficulties. The entire submission rested on a report by a clinical psychologist who had seen the Appellant for one hour in May 2016. The more recent letter, from the Appellant's GP dated the 4th August 2016, made no mention as to her inability to take part in the proceedings.

5. Once the adjournment application was refused Mr Kamran withdrew from the proceedings. The Appellant proceeded without Counsel. She confirmed that her written account, as set out in her asylum interview and in a letter drafted by her husband, was accurate. She answered questions put to her. At paragraph 41 of the determination Judge Birrell records: "I make clear that I was satisfied that the Appellant was fully able to participate in proceedings in the same way that any other Appellant does who is unrepresented except that she was clearly better educated and more articulated than many who appear before me. She did not demonstrate any apparent difficulty before me with her memory or her ability to concentrate. This was contrary to the opinion expressed in the report of Dr Owen although it may well be that as she has been receiving anti depressants and counselling, for what the GP describes as 'symptoms of anxiety and low mood', she was showing the signs of improvement that Dr Owen acknowledged could occur within 3-6 months".

6. Judge Birrell accepted the evidence that the Appellant and her husband had married in 2004 contrary to the wishes of her family. She further accepted that the family had intended that the Appellant be given in marriage to a man (Z) as a 'payment' for the fact that the Appellant's uncle had murdered someone from Z's family. There were however no problems arising as a result. The Appellant claimed that the first difficulty she encountered had been in 2011 when Z and his henchmen came to the army office she worked at in Rawalpindi and tried to attack her and her husband. They were saved by the fact that there were army people there who defended them. This part of the claim was rejected. The First-tier Tribunal found it to be inherently unlikely that Z would have taken 7 years to find the Appellant, that he would still be interested in avenging her refusal to marry him, or that if he was going to attack her he would have chosen to do it on an army base. Judge Birrell further noted the implausibility of the claim that the army did not appear interested in looking into what was in effect a breach of their own security. That attack forming the central plank of the asylum case, the Tribunal found there to be no risk on return. Even if the Appellant and her husband did not want to return to the Islamabad/Rawalpindi area they would be able to relocate within Pakistan. Judge Birrell did not accept that the couple were estranged: his presence at court indicated to the contrary. On the facts there was no real risk of harm, nor any reason to believe that the Appellant's removal would be a breach of the United Kingdom's obligations under the ECHR. The appeal was accordingly dismissed.

Grounds of Appeal

7. The Appellant is now represented by MIT Solicitors. The grounds as drafted are closely argued and lengthy. Mr Rashid was able to helpfully distil them as follows.

8. The first ground of appeal is that the Tribunal acted unfairly in refusing to adjourn. It is pointed out that the appeal had earlier been adjourned because of the evidence of Dr Owen which amounted to an acceptance of his conclusions. It was perverse for the Tribunal to have supplanted his assessment with its own. The determination records that the Appellant appeared "subdued": this confirms that she was not fit to take part in proceedings. The determination does not record the answers that the Appellant gave. Reliance is placed on a witness statement prepared by the previous representative, Mr Kamran. He states, inter alia that he had only been instructed to apply for an adjournment and that it was in those circumstances that he was forced to withdraw. This was a complex case which required the Appellant to be legally represented.

9. It is further submitted that the Tribunal erred in failing to take account of the change of circumstances, namely that the Appellant and her husband were no longer together. The Tribunal erred in failing to assess risk, and the best interests of the children, in the context of this information. The fact that she was no longer with her husband was pertinent to the question raised in paragraph 276ADE(1)(vi) of the Immigration Rules, namely whether there were very significant obstacles to her integration in Pakistan.

My Findings

The adjournment application

10. I am not satisfied that there was any unfairness in the Tribunal refusing to adjourn this appeal. The Tribunal begins its deliberations by properly directing itself to the overriding objective as set out in Rule 2 of the Procedure Rules: to deal with a case fairly and justly. This requirement includes "dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal" and "avoiding delay, so far as compatible with proper consideration of the issues".

11. There had plainly been a delay. By the time that it came before Judge Birrell this case had already been in the Tribunal system for a year with no substantive hearing having taken place. Mr Kamran was in effect asking the Tribunal to adjourn sine die or at least for another 6-9 months until the Appellant was "better". Notwithstanding the clear directions of Judge McClure, given in May 2016, there had been a manifest failure on the part of the Appellant and her legal team to provide a clear indication as to when that might be. That was a matter that the Tribunal was obliged to take into account, given the objective in avoiding delay.

12. The evidence before the Tribunal did not establish that the Appellant was unfit to take part in proceedings in August 2016. The Tribunal had before it a report from a psychologist who had seen the Appellant for one hour on the 11th May. Notwithstanding the clear directions of Judge McClure requiring further information, none had been forthcoming, other than a very brief letter from the Appellant's GP which confirmed that she had been prescribed Sertraline and was seeing a counsellor. That letter, written some three months after the report of Dr Owen, said absolutely nothing about her inability to take part in proceedings. That was a matter that Judge Birrell was entitled to take into account, particularly since (as she notes) it was from the clinicians with regular contact with the Appellant. Judge Birrell does note that the appellant appeared subdued, but contrary to the assertion in the grounds that it not a finding that she was unable to take part in the hearing. In fact the determination specifically records that the Appellant appeared to understand what had happened in the hearing and was able to participate without any apparent difficulties in recalling anything. I do not accept that Judge Birrell was here supplanting the opinion of Dr Owen for her own: she simply noted that the more recent medical evidence did not support the contention that the Appellant was unfit, and that in the event the Appellant was able to take part with no apparent problems. Presumably the Appellant would have indicated if she was unable to remember something she was asked about.

13. There was no obligation on the Appellant to give evidence. Although she told me that this had not been explained to her by Mr Kamran (an explicable omission on his part given that he was only there to try and get the case adjourned), the case could have been justly determined on the papers. It would appear from the chronology that the Appellant was not experiencing any mental health issues when she gave her account at interview, or when she agreed the account summarised in a letter subsequently drafted by her husband. There is nothing in those written materials to indicate that she was having any difficulty in recall.

14. It is that written account that Judge Birrell evaluates in her findings. She does not take any point against the Appellant arising from her oral evidence. I find that the Tribunal took a balanced and fair approach to the evidence. Core elements of the claim were accepted. The claimed incident in 2011 is rejected for clearly explained and sound reasons.

15. This was not a complex case. The grounds assert that the lack of legal representation compromised the Appellant's right to a fair hearing because it was "complex in nature and required the help of legal experts". That is manifestly not true. This was a straightforward asylum claim which turned on its facts. There were no complex legal issues arising at all.

Change in circumstance

16. The grounds submit that the Tribunal failed to grasp the significance of the indication - made through Mr Kamran - that the Appellant and her husband were now estranged. It is submitted that this was a pertinent factor in the protection claim, the assessment of paragraph 276ADE(1)(vi) and s55 of the Borders, Citizenship and Immigration Act 2009. If the Appellant was returning to Pakistan as a lone woman with three children this was relevant to all three of these issues.

17. The Tribunal did not fail to grasp the claim that the couple were estranged - it rejected it outright. The Appellant's husband had come to court, and as the grounds acknowledge, they were still living together at the same address. He refused to give evidence on the point. The Tribunal was entitled to infer from these facts that the couple were actually still together.

Decisions

18. The determination of the First-tier Tribunal does not contain an error of law.

19. There is an order for anonymity.

Upper Tribunal Judge Bruce
21st February 2017