Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13493/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 7 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

nbd
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms K. Jarkun, counsel instructed by Duncan Lewis & Co solicitors (Harrow office)
For the Respondent: Mr S. Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Vietnam, born on 16 December 1997. He arrived in the United Kingdom illegally in August 2014 and claimed asylum on 3 December 2014. He was referred to the National Referral Mechanism on 27 April 2015 and the Respondent subsequently accepted that he is a victim of modern slavery having been trafficked to the United Kingdom. On 26 November 2015, his asylum application was refused on the basis that his fear of persecution was not objectively well-founded and he appealed against this decision. His appeal came before Judge of the First tier Tribunal Scott for hearing on 11 May 2016, when the hearing proceeded absent any evidence by or on behalf of the Appellant, who was not present at the hearing, nor represented.

2. The appeal was dismissed in a decision and reasons dated 7 July 2016. An application for permission to appeal to the Upper Tribunal was made on 25 July 2016 out of time but time was extended on the basis that the Appellant only received the decision on 11 July 2016. The grounds in support of the application for permission to appeal asserted that neither the Appellant, social services nor his legal representatives had been informed of the date of the appeal hearing on 11 May 2016 and thus there had been a breach of natural justice resulting in unfairness and procedural impropriety. Permission to appeal was granted by Judge of the First-tier Tribunal Landes on 4 August 2016 on the basis that it was arguable that albeit unknown to the Judge there was a procedural irregularity in that the Appellant's solicitors had been removed from the record in error and, whilst the notice of hearing had been sent to the Appellant's last known address, he was only 18, requires an interpreter and has been found to be the victim of trafficking and it was understandable that he would have assumed that his solicitors would have notified him of the hearing.

3. At the hearing before me, Mr Kotas, on behalf of the Secretary of State, readily accepted that there had been procedural unfairness arising from the administrative error which resulted in the Appellant's representatives being removed from the record and thus no hearing notice was sent to them informing them of the date of the appeal hearing. There is on the Tribunal file a letter dated 11 August 2016 to the Appellant's support worker at Islington Young People's Service, acknowledging the administrative error and apologizing.

4. Therefore, I allow the appeal on the basis that the reason for the absence of the Appellant and his representatives at the hearing before the First tier Tribunal was because his representatives had been mistakenly struck from the record and the Appellant had moved house and had not received the notice of hearing. Whilst he should have informed the Tribunal that he had moved, I find in light of the Respondent's acceptance that the Appellant is a victim of trafficking, his young age and limited English that it is understandable that he did not and that he would rely on his representatives to inform the Tribunal of his change of address and any appeal hearing date. The fact that the appeal proceeded absent any evidence from or on behalf of the Appellant was thus procedurally unfair. Given that the Appellant does wish to prosecute his appeal and appeared before me in person and with counsel instructed by his solicitors, I remit the appeal for a hearing de novo before the First tier Tribunal.

Deputy Upper Tribunal Judge Chapman

5 December 2016