Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11888/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 26th July 2016
On 2nd August 2016

Before

upper tribunal Deputy judge ROBERTS

Between

AZ
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Hussain, Counsel
For the Respondent: Mr Diwnycz, Senior Presenting Officer

Anonymity

An anonymity direction was made in the First-tier Tribunal. I direct that this should continue. Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008.
DECISION AND REASONS
1. The Appellant, AZ, appeals with permission against the decision of the First-tier Tribunal (Judge McAll) dismissing his appeal against the Respondent's refusal of 12th November 2015, to grant him asylum.
2. In seeking permission to appeal the FtT's decision, the Appellant through his representatives, advanced one ground only; namely that he had not been given the opportunity to have a fair hearing. The FtT judge who heard his appeal on 28th April 2016, refused the Appellant's request for an adjournment in order to have his representative present and to allow him time to bring a witness to the hearing and have further documents translated.
Background
3. The background to this application is as follows. The Appellant is a citizen of Iran born 17th April 1984. He entered the UK in 2008 on a student visa and first applied for asylum on 12th February 2012. That claim was refused by the Respondent on 8th March 2012 and a subsequent appeal against that decision was dismissed. An onward appeal to the Upper Tribunal was also dismissed.
4. On 13th March 2013, the Appellant's then representatives Parker Rhodes Hickmotts wrote to the Respondent with further submissions, claiming there was fresh evidence that had not been considered by the Upper Tribunal.
5. The Respondent accepted the claim and gave consideration to the Appellant's fresh submissions. She then issued a further decision after looking at the fresh evidence. That decision is dated 18th August 2015 and in it the Respondent maintained her refusal of the Appellant's claim to asylum.
6. The Appellant appealed that decision and the appeal came before the First-tier Tribunal on 28th April 2016. Prior to the hearing on 28th April 2016 a Case Management Review hearing took place on 11th April 2016. The Appellant was unrepresented at the Case Management Review, although his representatives Parker Rhodes Hickmotts, were still on record as acting for him. It is noted that at the Case Management hearing the Appellant informed the judge, that he was no longer pursuing his claim to asylum on the basis of his political opinion, but was now claiming that he was in fear of return to Iran because of his conversion to Christianity. The Appellant informed the judge at the Case Management hearing that he had a witness to this claim (the pastor of the church in which he had been baptised) and further documents which needed translating and which related to his new claim. The Appellant was warned that he must bring his witnesses, and translated versions of the documents relied upon, to the full hearing on 28th April.
7. At this point matters become unclear. Suffice to say that the Appellant came to the hearing on 28th April 2016, without a representative, without his witness and without translated documents. He asked for an adjournment, informing the judge that Parker Rhodes Hickmotts had come off record on 19th April 2016, but that he had secured new representation, Halliday Reeves Law Firm but they had only come on record on 24th April and had written to the Tribunal requesting an adjournment in order to have time to take instructions get the documents translated and take a statement from the witness.
8. Judge McAll noted all of this but decided that he should proceed with the matter, after securing the Respondent's representative's consent to dealing with what was a new matter, the Appellant's conversion to Christianity. After hearing evidence and considering matters, Judge McAll went on to dismiss the Appellant's appeal finding that the Appellant's conversion to Christianity was no more than a fabrication in order to bolster his claim to asylum.
9. The Appellant appealed that decision stating that he had not been given the opportunity of a fair hearing and permission was granted. Thus the matter comes before me.
The UT Hearing/Error of Law
10. Mr Hussain appeared on behalf of the Appellant. Following representations from Mr Hussain, I am satisfied that Judge McAll was not in possession of all the relevant information, when he made his decision to refuse the Appellant's adjournment. No criticism attaches to the judge for this but I am satisfied that in the interests of fairness, I am obliged to set aside what is a well structured decision. My reasons for this are as follows.
11. Mr Hussain submitted that Parker Rhodes Hickmotts informed the Appellant that they could no longer act for him. So far as the Appellant is concerned he can give no explanation for this. He was perfectly happy with the way Parker Rhodes Hickmotts were conducting his case and was surprised when they informed him that they had come off record. When he attended the Case Management Review hearing, Parker Rhodes Hickmotts were his representatives and that is how matters stood. He had given them instructions that he had now converted to Christianity and so far as he understood they had matters in hand to call his witness and to get his documents translated for the full hearing on 26th April 2016. The pastor from his church was willing to attend that day.
12. Parker Rhodes did not inform the Appellant that they were coming off record until 19th April, a week before the full hearing was due to take place.
13. The Appellant within two or three days of 19th April, secured the services of Halliday Reeves. However they required time, firstly to obtain the Appellant's file and to look at the new evidence which was available.
14. The Appellant turned up at the hearing on 28th April 2016 without his witness, because he was under the impression that an adjournment would be granted. He was under this impression because to date he is still unclear why Parker Rhodes came off record.
15. The judge at the hearing on 28th April, following representations by the Presenting Officer that the Appellant had "suddenly changed representatives" formed the view put forward, that the Appellant was changing his representatives in order to delay proceedings. The judge's reasoning was understandable because that is certainly one interpretation that could be made.
16. However, the information before me admits of a different interpretation because rather than the Appellant being the driver for the change in his representation it seems it was the other way round. The Appellant therefore found himself in difficulty which as far as he was concerned was not prompted by him and he had further evidence available, which he considered or believed his past representatives were dealing with.
17. In these circumstances I am satisfied that the Appellant has been denied the opportunity of submitting that further additional evidence which may or may not materially affect the outcome of his appeal. That will of course be a matter for the findings of the next Tribunal.
18. In these circumstances I set aside the decision of the First-tier Tribunal. The matter is remitted to that Tribunal for a fresh hearing to take place and for the decision to be re-made. The hearing should be before a judge other than Judge McAll.

Notice of Decision

The decision of the First-tier Tribunal is hereby set aside for legal error. The matter is remitted to that Tribunal for a fresh rehearing (not Judge McAll) with no findings being preserved.

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 him 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 31 July 2016

Upper Tribunal Deputy Judge Roberts