Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: aa/12064/2015
Aa/12042/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 6 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

MOHAMMED [U] (first Appellant)
BABUDEEN [U] (second Appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms B Jones (Counsel instructed by Wimbledon Solicitors)
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. The appellants appeal against a decision made by First-tier Tribunal (Judge Swinnerton) ("FTT") promulgated on 22 July 2016. The FTT found that the appellants were not refugees from Sri Lanka because he did not believe their accounts, and dismissed the appeals.

2. The appellants, father and son, are citizens from Sri Lanka. Their claims for asylum were refused by the Secretary of State on 27 August 2015. The basis of the first appellant's claim was that he had been falsely accused of assisting the LTTE and had been beaten up by the police and forced to pay a ransom for his release. The second appellant claimed also to have been beaten by the police and hospitalised. The adverse interest in him was as a result of the continued pursuit of the first appellant by the Sri Lankan authorities. It was also asserted that the brother-in-law of the first appellant had been killed by the Sri Lankan authorities in January 2015.

FTT decision

3. An application for an adjournment was made because the second appellant was unable to attend the hearing as he was caring for his sick mother who was also to have attended as a witness. The FTT had regard to a medical report confirming that the mother had attended the surgery on 30 June 2016 with multiple health issues in particular associated with diabetes and hypertension. It was submitted that the evidence of the mother was important as it dealt with her own situation and further she had witnessed some of the core events in Sri Lanka and could corroborate the accounts given by the appellants. The second appellant would have been able to cover issues of fact that related to his account separate from that of the first appellant.

4. The FTT refused the appellants' application for an adjournment of the hearing. The FTT looked at the overall position and took the view that the first appellant was the main appellant. He was able to give oral evidence. Accordingly there was no unfairness resulting from the refusal to adjourn. It was noted that the second appellant did not have any medical condition that prevented him from attending the hearing. His position was that he had to remain in Dewsbury to look after his mother. The FTT considered the medical evidence to be inadequate in that it did not refer to any specific medical issue preventing the appellant's mother from attending or requiring the second appellant to care for her.

5. The FTT proceeded to hear the evidence of the first appellant. It took into account the lack of documentation provided by the first appellant in connection with injuries and scarring sustained following the detention in January 2009 and further the lack of documentation in relation to injuries sustained by the second appellant in relation to an attack towards him in January 2010. The FTT referred to a letter from an advocate Mr R M Amam dated 15 January 2016 and concluded that little weight could be placed on the document that had been belatedly produced in support of the claim.

6. The FTT did not find the appellants accounts to be credible. The FTT found it implausible that children would be attacked by the authorities, and the failure to provide detailed evidence as to the name of the hospital where the second appellant had been treated was significant. The FTT took into account that there was no independent evidence to confirm the death of the appellant's brother-in-law in 2015. It further placed weight on the delay in making a claim for asylum namely six years after May 2009.

Grounds of Application for Permission to Appeal

7. The FTT erred by refusing to grant an adjournment in circumstances where a material witness was unavailable for good reason on a fixed date but able to attend within a reasonable period. (AS (Pakistan) v SSHD [2007] EWCA Civ 703).

8. The FTT criticised the lack of documentation having regard to injuries and scarring sustained by both appellants. The FTT then failed to give adequate reasons as to why little weight was placed on a letter from R M Amam which corroborated the appellants' account and the FTT failed therefore to consider the contents of that letter at all.

9. The FTT failed to consider objective evidence provided by the appellants showing that there were instances where the authorities had used excessive force and torture against women and children.

Grant of Permission

10. Permission to appeal was granted by Designated First-tier Tribunal Judge McCarthy on 16 August 2016.

11. Judge McCarthy found the grounds argued were well made and all arguable. In addition he stated
"I mention that in addition to the grounds presented, I have my own concerns that the reasoning in paragraphs 35 and 37 is not consistent. In the formal paragraph the judge finds against the appellants partly because he is surprised that the appellants have been unable to recall the year in which an attack happened. He suggests that the appellants are not to be believed because this event would have been significant and therefore memorable. In the latter paragraph the judge identifies that the appellants did not consider that incident as significant except in hindsight because of events in 2015. It is possible, therefore, that the appellants have given a consistent account and this has been ignored by the judge.
(I comment that my observations should not be given any undue attention and should be seen as an indication that the grounds as settled might merely scratch the surface of the problems in this decision.)"
Rule 24 Response

12. The Secretary of State opposed the appeal. The FTT gave due consideration to the request for an adjournment and took into account that the doctor's letter made no specific reference to any issue resulting in the witness' inability to attend the hearing, no adjournment request was made before the day of the hearing and there was no medical evidence to indicate that the second appellant was required to care for his mother and therefore would be absent from the hearing.

13. Further the Secretary of State submitted that the FTT provided reasons for the findings made and in particular that the first appellant's evidence was not consistent and in particular confirmed that he was not involved with the LTTE.

Error of Law Hearing

Submissions

14. Ms Jones relied on the grounds of appeal. She considered those points made by Judge McCarthy but did not seek to amend the existing grounds of appeal. In considering the issue of procedure unfairness Ms Jones submitted that she had now been instructed that the appellants' wife/mother is unfit to travel as confirmed in a letter dated 15 September 2016 from her GP. With that in mind Ms Jones did not intend to pursue the complaint that the appellants were deprived of the opportunity to have this witness in attendance at the hearing. She relied instead on the ground that the second appellant had not been given the opportunity to give direct evidence in support of his asylum claim in circumstances where there would have been no prejudice to the respondent by an adjournment. The second appellant would or would not have attended at the next hearing and would be expected to provide a proper explanation as to why he had not attended for the first hearing.

15. Ms Jones submitted that the FTT erred by in effect holding it against the appellant for their failure to produce objective evidence.

16. The reasons for rejecting the letter from Mr Amam were insufficient in light of the fact that the letter was dated 5 January 2016 and had been produced in the bundle for the hearing. The FTT had not engaged with the substance of the letter at all.

17. The FTT failed to address the basis of the first appellant's claim that he was a supporter of the LTTE and the authorities were adversely interested in him rather than as an LTTE member.

18. Ms Ahmad relied on the Rule 24 response and submitted that the FTT properly considered the adjournment application and weighed up the relevant considerations. In particular there was no documentary evidence provided by the second appellant detailing why he was unable to attend. It appeared that he had chosen not to attend.

19. The FTT was entitled to place weight on documentary evidence produced and whilst such reasoning was limited it was nevertheless valid.

20. Ms Jones accepted that the second appellant had provided no documentary evidence himself but it had been explained that he had been required to care for his mother. The parties lived in Leeds and the hearing was in London.

Decision and Discussion

21. At the end of the hearing I found that there was a material error of law in the decision and reasons by First-tier Tribunal Judge Swinnerton which I set aside. The medical evidence in relation to the appellant's wife/mother was not wholly satisfactory in that it failed to specify exactly what the medical issues were and why the witness could not travel to attend the hearing and/or why it was necessary for the second appellant to remain at home to care for her. Notwithstanding those matters I take the view that the refusal to adjourn resulted in unfairness to the second appellant in circumstances where there was some evidence to show that his mother was unable to attend the hearing and given the distance that the family lived away from the hearing centre, it would appear reasonable that the second appellant would be required to care for her. It was clear to the FTT that the first appellant would only be able to give evidence having regard to core events in his claim and given that the second appellant was a party to the proceedings rather than a witness, an adjournment was the fair and proper course of action to take to allow the second appellant an opportunity to give evidence. This was important as the appeal was founded on the credibility of the accounts given by the appellants. In addition the FTT also took into account the failure to provide independent corroboration and where there was some corroborating evidence the FTT failed to give full and proper reasons as to why little weight was placed on that evidence. I find that the reason given namely delay in producing the evidence, was insufficient and inaccurate in the circumstances. Furthermore where there was objective evidence for example as to the use of violence by the authorities towards children, I find that the FTT appears not to have taken this into account.

22. Accordingly having regard to all of the grounds raised cumulatively I have decided that there are material errors in law in the decision which I set aside. The matter is to be remitted for a hearing de novo at Taylor House (excluding Judge Swinnerton) on a date and time to be fixed.

Signed Date 6.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black

No anonymity order made

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 6.10.2016

GA Black
Deputy Upper Tribunal Judge G A Black