Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11548/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22 November 2016
On 06 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

p o
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Lane instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order given the nature of the appellant's claim. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction
2. The appellant is a citizen of Zimbabwe who was born on 9 July 1982. She arrived in the United Kingdom on 1 May 2014 as a visitor with leave valid until 7 October 2014. On 7 October 2014 she claimed asylum. On 12 December 2014, the Secretary of State refused the appellant's claim for asylum and made a decision to remove her to Zimbabwe.
3. The appellant appealed against that decision. The appeal was ultimately listed before the First-tier Tribunal on 5 February 2016. At that hearing, the appellant's legal representative applied for an adjournment on a number of grounds, in particular that those instructing him had been unable to prepare adequately the appellant's appeal, including producing a witness statement.
4. Judge M M Thomas refused the appellant's application for an adjournment and went on to hear the appeal. The judge dismissed the appellant's appeal on all grounds.
The Appeal to the Upper Tribunal
5. The appellant sought permission to appeal to the Upper Tribunal on the single ground that the judge had acted unfairly in refusing the adjournment application.
6. On 4 April 2016, the First-tier Tribunal (Judge J M Holmes) granted the appellant permission to appeal.
7. On 13 April 2016, the Secretary of State filed a rule 24 response seeking to uphold the First-tier Tribunal's decision on the basis that it was not unfair to refuse the adjournment application.
8. Thus, the appeal came before me.
The Submissions
9. Mr Lane, who represented the appellant relied upon the grounds drafted by the appellant's legal representative at the date of the First-tier hearing (Asylum Justice). He submitted that the appellant had sought an adjournment on four grounds, set out in para 5 of the grounds of appeal:
(1) There was no appellant's bundle or statement;
(2) The need for medical evidence relating to the appellant's mental health and her ability to give oral evidence;
(3) Counsel was without clear instructions from those instructing him;
(4) An allegation of sexual abuse that was being raised at the hearing.
10. Mr Lane submitted that it was unfair for the appellant's appeal to proceed in the absence of a written statement, including one dealing with the matter of sexual abuse that was raised at the hearing. Mr Lane submitted that the judge had failed properly to have regard to the fact that the appellant's representatives at the hearing (Asylum Justice) had not been representing the appellant since early December 2015 and, therefore, had not had almost two months to prepare the case as the judge stated in para 13 of her determination.
11. Mr Lane submitted that the facts, as set out in the grounds of appeal, were that Asylum Justice had been approached by the appellant on 7 December 2015 because the appellant believed that her previous representatives (Virgo Consultancy) had ceased to act for her. As a consequence, Asylum Justice sought, and obtained, an adjournment of her forthcoming hearing listed on 9 December 2015 in order to take full instructions and to represent her. She had attended that hearing with her support worker but without legal representation. The appeal was adjourned and relisted for 5 February 2016. However, in early January the appellant informed Asylum Justice that Virgo Consultancy had, in fact, not ceased to act for her and that she was to be represented by them. Asylum Justice, as a consequence, ceased to have any involvement in the appellant's case at that time.
12. The appellant, however, attended a drop-in advice service on 1 February 2016 at Asylum Justice. She informed Asylum Justice that she had spoken to Virgo Consultancy that morning on the telephone and had been told that her solicitor had left the firm and that they were unaware that her appeal had been listed for 5 February 2016. She informed Asylum Justice that Virgo Consultancy were not representing her and again requested Asylum Justice to represent her at the forthcoming appeal hearing on 5 February 2016.
13. Asylum Justice agreed to help the appellant and arranged to meet her the following morning in order to prepare a witness statement but unfortunately the responsible member of staff was taken ill for a week and as a result the appointment was cancelled. Asylum Justice instructed a barrister to attend the hearing but that in the few days remaining were unable to prepare a statement and bundle of evidence on the appellant's behalf or to obtain medical evidence about her mental health.
14. Mr Lane submitted that in refusing the adjournment, the judge had misunderstood the position in para 13 when she concluded:
"There has been ample opportunity to prepare the necessary bundles and take a witness statement in that period".
15. Mr Lane, now not instructed by Asylum Justice, submitted that the judge had at least a letter from Virgo Consultancy before her dated 4 February 2016 which stated that Virgo Consultancy were unable to continue representing the appellant as a "further funding certificate was refused". The judge was, therefore, Mr Lane submitted aware that Asylum Justice had not been the appellant's representatives throughout the period between early December 2015 and early February 2016.
16. Mr Lane also relied on the fact that there was evidence before the judge, in the form of a medical report from Dr Alexa dated 22 January 2016, that the appellant suffered from mental health problems and that, although she had capacity, she had difficulties. Mr Lane submitted that the judge failed to have proper regard to this in determining whether it was fair that the appellant should give her account for the first time before the judge rather than in a prepared witness statement. Likewise, Mr Lane relied on the fact that the sexual abuse allegation had only been made at the hearing (although previously raised in Dr Alexa's report) and it was not fair to expect the appellant to deal with this for the first time in her examination-in-chief.
17. Finally, Mr Lane relied on the fact that the judge referred to a direction given by the judge at the earlier adjourned hearing on 9 December 2015 that there would be no further adjournments based on problems relating to representation. He submitted that the judge was not bound by what the previous judge had said who could not have anticipated all the circumstances that could arise subsequently.
18. Mr Lane referred me to the Upper Tribunal's decision in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). He relied on the head note which is in the following terms:
"If a Tribunal refuses to exceed to an adjournment request, such a decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affective party of his right to a fair hearing. When adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affective party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284".
19. Mr Lane submitted that the refusal of the adjournment was, in all the circumstances, unfair.
20. On behalf of the respondent, Mr Richards submitted that there was no unfairness. He pointed out that it was quite common to proceed in hearings before the First-tier Tribunal without a written statement from an appellant. The appellant had had the benefit of experienced Counsel in this jurisdiction and Counsel had been given a short adjournment on the day, which lasted 40 minutes, to prepare and take instructions.
21. Mr Richards submitted that, as pointed out in para 15 of the judge's determination, it was agreed that the issue of sexual abuse could be dealt with in examination-in-chief and cross-examination.
22. Further, the judge had the benefit of a psychiatric report from Dr Alexa which, in para 6, stated that the appellant was "quite able to talk about her problems and able to attend a court case and give evidence".
23. Finally, Mr Richards submitted that the judge, whilst referring to the earlier judge's comment about further adjournments, it could not be said that the judge had felt bound by those comments.
24. In relation to the judge's comments (at para 12) that the Presenting Officer had made no objection in principle to an adjournment "on the basis of the evidence regarding the appellant's mental health", Mr Richards informed me that, having taken instructions, the Presenting Officer was instructed to leave the matter of the adjournment to the judge and not to actively oppose it.
25. In all the circumstances, Mr Richards submitted that the judge had considered all the factors in paras 12-16, and had properly refused the adjournment in circumstances where it could not be said that any unfairness resulted.
Discussion
26. The judge's reasoning leading her to refuse the adjournment is set out at paras 12-16 of her determination as follows:
"12. At the outset of the hearing an application was made for an adjournment by Mr James. Miss Jefferies had no objection in principle to an adjournment on the basis of the evidence regarding the Appellant's mental health. The adjournment request was on the following grounds:
(i) there was no Appellant's bundle and of foremost importance, no statement from the Appellant;
(ii) the vulnerability of the Appellant's mental health and because of that, her ability to give oral evidence;
(iii) Mr James was without clear instructions from those instructing him; and
(iv) the allegation of sexual abuse that was now being raised by the Appellant.
13. In relation to adjournment requests (i) and (iii) this appeal had been listed for hearing on two previous occasions. Initially, on 8 April 2015 and then on 9 December 2015. Directions in relation to the appeal were originally made on 29 December 2014. On the 9 December 2015, a clear direction was given by District Judge N Poole that there would be no further adjournments based on problems relating to representation. The adjournment request on that date was as a result of an issue with the Appellant's representation. I refer to the letter dated 8 December 2015 from Ruth Brown of Asylum Justice where an adjournment was requested so that the Appellant could be represented by them. Mr James who appears for the Appellant today is instructed on behalf of Asylum Justice. I therefore can identify no grounds for the adjournment on the basis of (i) and (iii). This case was listed for hearing today on 30 December 2015. It is almost 2 months since this case was previously listed for hearing and when Asylum Justice advised that they were instructed on behalf of the Appellant. There has been ample opportunity to prepare the necessary bundles and take a witness statement in that period. The fact that Mr James has been unable to speak to Miss Brown this week because she is away is not an issue for this tribunal.
14. In relation to the mental health issues and the concerns relating to the Appellant's ability to give oral evidence I have been provided with a copy of a medical report from Dr Simina Alexa dated 22 January 2016. I refer to paragraph 6 of that report which clearly indicates that Dr Alexa does not identify any difficulties with the Appellant giving evidence in court.
15. Finally, in relation to the allegation of sexual abuse. At the time of the adjournment request I had no information pertaining to this although, Ms Jefferies for the Respondent did indicate that she was unaware of what it related to. There was no suggestion that it would require any expert evidence. On that basis, it was agreed it was an issue that could be dealt with in examination in chief and cross-examine.
16. The adjournment request was refused as I could not identify either singularly or cumulatively any reason why the appeal should be adjourned. In refusing I have considered the Overriding Objective (Rule 2 of the Tribunal Procedure (First Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014) and my duty to deal with cases fairly and justly which includes '(a) 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; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; (e) avoiding delay so far as compatible with proper consideration of the issues'. Further I have taken into account the guidelines set out in Ex parte Martin [1994] Imm AR 172 on the various matters which should be taken into account when a judicial body is asked to adjourn proceedings. These include: (i) The importance of the proceedings and their likely consequences to the party seeking the adjournment; (ii) the risk of the party being prejudiced in the conduct to the proceedings if the application were refused; (iii) the risk of prejudice or other disadvantage to the other party if the adjournment were granted; (iv) the convenience of the court; (v) the interests of justice generally and the efficient despatch of Court business; (vi) the desirability of not delaying future litigants by adjourning early and thus leaving the court empty; and (vii) the extent to which the party applying for the adjournment has been responsible for creating the difficulty which has led to the application. I am satisfied that the refusal of the further adjournment of this appeal is in accordance with the overriding objective and the guidelines provided in Ex parte Martin."
27. I see no reason to call into question what is said by Asylum Justice in the grounds of appeal concerning their involvement with the appellant. Mr Richards did not seek to challenge what was said. It is clear, therefore, that the judge was under a misapprehension as to the timing of the involvement of Asylum Justice and in concluding that they had had almost two months to prepare for the hearing. The fact of the matter is that, in reality, they had ceased to be involved in early January 2016 before Virgo Consultancy again took over representation of the appellant and had not, in the time available to them, been in a position to prepare the appellant's appeal for 5 February 2016. The earliest that they next became involved was 1 February 2016 which gave them three working days before the hearing which was due to take place on 5 February 2016. Given the letter from Virgo Consultancy dated 4 February 2016, it is difficult to understand how the judge (whatever the detail of information she was given) could conclude that Asylum Justice had been involved for "almost two months" since the case was previously listed on 9 December 2015.
28. It is clear from the material before me that the appellant's (then) representatives, and Mr James who was Counsel at the hearing on 5 February 2016, were not in a position to fully and adequately represent the appellant.
29. There may well be cases where a written statement from an appellant is not an essential forensic tool for a legal representative in order that proceedings will be fair, for example, facts may be little in dispute or of a narrow compass. An assessment of whether proceeding in the absence of a witness statement is or is not fair must necessarily be fact-sensitive. Here the appellant was claiming asylum and there was at least some evidence that she was vulnerable based upon her mental health. Likewise, her account (at least latterly) involved allegations of sexual abuse. These were matters which, if the appellant was to be facilitated to give her best evidence before the Tribunal, cried out for a witness statement based upon the obtaining of full instructions from the appellant. Through no fault of the appellant, or indeed her representatives at the hearing on 5 February 2016, the appellant was unable to give her representatives those instructions prior to the hearing and produce a witness statement that could stand as her evidence-in-chief. Whilst her Counsel was given a short adjournment - it would appear of approximately 40 minutes - to take instructions from the appellant that cannot, in my judgment, overcome the potential prejudice to the appellant of providing full instructions to her representatives in the usual way prior to the hearing.
30. I bear in mind, though it is not determinative, that the appellant's mental health was also a matter of concern even if Dr Alexa was able to say that the appellant was able to talk about her problem and to attend her court case and give evidence. The issue is not whether she had capacity to give evidence - that is not doubted - but rather whether she has unfairly been deprived of the opportunity to give her best evidence in support of her claim. In my judgment, she has.
31. In addition, I also have concerns that Judge Thomas took into account what was apparently said by the judge at the earlier hearing on 9 December 2015 that there would be "no further adjournments based on problems relating to representation". The file note records the judge's view that it was "unlikely that this case would be adjourned again" (my emphasis). It is not entirely clear to me what weight, if any, Judge Thomas gave to the earlier judge's comment, which, in any event, she appears to have overstated. Mr Richards may well be right that the "clear direction" was not taken as binding by Judge Thomas but she, nevertheless, referred to it and it is only reasonable to conclude that she considered it was, at the very least, relevant to her decision. It is difficult to see how it was relevant given first, it does not appear to be what the earlier judge had actually said; in any event the earlier judge could not have considered the circumstances as they appertained at the hearing on 5 February 2016; and the judicial judgment whether to adjourn the hearing was entirely one for Judge Thomas.
32. Applying the approach set out in Nwaigwe, I am satisfied that the judge, in refusing the adjournment request, failed properly to consider all the relevant circumstances (in relation to the involvement of Asylum Justice) and in refusing the adjournment deprived the appellant of a fair opportunity to present her case through her legal representatives.
Decision
33. For these reasons, the decision of the First-tier Tribunal to dismiss the appellant's appeal involved the making of an error of law. That decision is set aside.
34. Given the nature of the error of law, the proper disposal of this appeal is to remit it to the First-tier Tribunal for a de novo rehearing before a judge other than Judge M M Thomas.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 06 December 2016