Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00356/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 March 2013
On 7 June 2013

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Sharif ahsan
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M. Hashim, Counsel, instructed by East London Law Chambers
For the Respondent: Ms A. Holmes, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The appellant is a citizen of Bangladesh, who claims to have been born on 10 February 1977, although the respondent refers to a date of birth of 1 February 1964. He arrived in the UK on 24 March 2005 with entry clearance as a visitor. In November 2009 he applied for indefinite leave to remain outside the Immigration Rules but that application was refused.
2. On 6 January 2011 he pleaded guilty to three counts of possession of false identity documents and was sentenced on 10 February 2011 in the Crown Court at Snaresbrook to a total term of 18 months imprisonment. In May 2012 (no date is given on the decision letter) there was a decision to make a deportation order under the automatic deportation provisions of the UK Borders Act 2007. The appellant's appeal against that decision was dismissed by a Panel of the First-tier Tribunal consisting of First-tier judge P.J.M. Hollingworth and Mr G.H. Getlevog after a hearing on 18 July 2012. The appeal came before the Upper Tribunal following a grant of permission to appeal by a Judge of the First-tier Tribunal.
3. The First-tier Tribunal referred to an earlier determination of an asylum appeal by the appellant, whereby Immigration Judge Jhirad dismissed his appeal after a hearing on 11 July 2011. The Panel in this appeal rejected the appellant’s claim to be at risk on account of his political activity and rejecting the documentary evidence adduced on his behalf. The Panel concluded that his return would not amount to a disproportionate interference with his private life.
Submissions
4. On behalf of the appellant it was submitted that a number of witnesses had appeared at the hearing before the First-tier Tribunal but they had not been interviewed by those representing the appellant, partly because of the issue of funds. The First-tier judge had said that the witnesses’ statements were not in the proper form. Mr Hashim said that what the witnesses said in those documents needed to be verified, and he, Mr Hashim, was not willing to call them without further enquiries into their evidence which needed to be investigated. The solicitors had told him that they were not aware of the witnesses but they were told to attend in any event.
5. I enquired as to who the witnesses were and where their statements were. Mr Hashim informed me that he did not have the bundle that was before the First-tier Tribunal. He was then able to identify the witnesses from that bundle which I provided to him. It was then said on behalf of the appellant that those letters were not adequate as evidence.
6. So far as the documentary evidence was concerned, the Secretary of State had not suggested that they were false. The application for an adjournment for further translations was refused. There was some confusion on the part of the appellant as to what was the original newspaper report. The appeal was prepared whilst the appellant was in custody.
7. On behalf of the respondent reference was made to the reasons for deportation letter in terms of adverse credibility points made against the appellant. There was inconsistency in relation to the claimed death of the appellant's mother. Even if the First-tier Tribunal had been wrong to refuse to adjourn the appeal, any error of law in that respect was not material. Furthermore, the question arises as to whether he would need to return to his home area and there is nothing to indicate that anyone would know that he had returned.
8. Nevertheless, for the sake of justice being seen to be done, the Panel should have granted the adjournment even though the evidence of the witnesses appears to be flimsy.
My assessment
9. Notwithstanding that it appears to have been conceded on behalf of the respondent before me that the Panel of the First-tier Tribunal ought to have adjourned the hearing at the request of the appellant's representative, I am not satisfied that there was any error of law in the failure to adjourn. It is clear that witnesses attended the hearing but were not called to give evidence. It seems that they had written letters but not made witness statements. At the hearing before me it was eventually ascertained that those witnesses’ letters are to be found at pages 28, 29, 32 and 34 of the appellant's bundle.
10. In refusing the application for an adjournment, at [11] the Panel referred to the appellant's history, and the time he has had to prepare for the appeal, as well as to the failure to have made an earlier application for an adjournment. However, most important of all in my view is the fact that the Panel indicated that it was in a position to hear from the witnesses. It seems from the submissions put before me that the decision not to call those individuals as witnesses was a purely forensic decision on the part of counsel. The foundation for their evidence was in their letters, which were themselves admissible in evidence. Given that the witnesses were available at the hearing to give evidence, there was no error of law on the part of the First-tier Tribunal in refusing to adjourn to allow for full witness statements to be obtained or for further enquiry in relation to their evidence to be undertaken.
11. Similarly, the Panel was entirely justified in refusing the renewed application for an adjournment which appears from [27] to have been on a different basis, namely to undertake further enquiries in relation to documents submitted by the appellant.
12. In dismissing the appeal, the Panel stated at [42] that it took as its starting point the determination of Immigration Judge Jhirad, she having found the appellant not credible.
13. The Panel rejected the documentary evidence relied on by the appellant, that documentary evidence including statements or letters which, on the face of them, provide varying degrees of support for his claim. At [39] of the determination the Panel stated that evidence before them was either untranslated or otherwise unaccompanied by certificates of translation “in proper form”. At [41] it was concluded that the only admissible appellant's evidence before the Tribunal was that of the appellant himself.
14. At [45] it was concluded that the only documentation that had been adduced subsequent to the determination of Judge Jhirad was either inadmissible or carried no weight. There then followed an analysis of the documentary evidence.
15. As regards several documents, the Panel stated that there were no certificates of translation. Those documents are identified at [48] and [49] of the determination. The first is a document at pages 8-10 of the appellant's bundle before the First-tier Tribunal. This is said to be from members of the BNP attesting to the appellant's political activities and the problems he is said to have faced. Although the Panel stated that there was no certificate of translation, at the top of page 8 is the line “True English Translation”. At the bottom of page 10 is the name and signature of the person said to have done the translation.
16. The Panel further concluded that the document starting at page 8 has an original seal which does not appear on the untranslated version at page 12. However, that seal appears to be the seal of the translated document, to which the seal relates. The seal on the untranslated document is in fact translated on page 10. A further example of a seal appearing on a translation is to be found on the document at page 15 of the appellant's bundle.
17. The document at page 15 is also said to be from the BNP and relating to the appellant's political activities. It is stated at the top of the page to be a true translation and the name and signature of the person translating is given. Two other documents that are referred to in the determination do not have certificates of translation in any form (pages 13 and 18) as the Panel pointed out.
18. Rule 52 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 refers to the requirement for documents to be accompanied by a translation into English signed by the translator to certify that the translation is accurate (rule 52(1)(b)). Rule 52(3) uses the phrase “certified translation.” However, beyond that there is no description of any particular form of certification required. The documents to which I have referred at pages 8-10 and 15 are in my view certified translations. They are stated to be true English translations and the translator has signed the translations. The First-tier Tribunal was wrong therefore to have attached no weight to those documents purely on the basis that in its view they were not accompanied by certified translations. The other basis of rejection of the document (referred to at [16] above with regard to the “seal”) is unsustainable.
19. In its approach to that documentary evidence I am satisfied that the First-tier Tribunal erred in law.
20. At [50] the Panel referred to the various letters in the appellant's bundle from pages 24 to 30. It stated that “We attach no weight to any letter, certificate or document appertaining to the political history of the Appellant from any potential witness who has not in fact been called to give evidence” (my emphasis). It is not necessary for me to set out the detail of those letters. Suffice to say that to varying degrees some of them refer to the appellant's political activities in Bangladesh. The dates of them would, on the face of it, suggest that they were not documents that were before Judge Jhirad, except to say that I note that at page 28 is a letter from Mohammed Mukarrim and Aysha Mukarrim, and at [5] of Judge Jhirad’s determination she refers to a witness before her, a Mr M Mukerrim.
21. I have referred at [9] above to the witnesses that are said to have attended before the First-tier Tribunal who were not called to give evidence but whose letters were before the First-tier Tribunal. As I have indicated, it was the appellant's representative who made the decision not to call them as witnesses. However, whilst the First-tier Tribunal would have been perfectly entitled to conclude that less, or even little, weight should be attached to the written evidence of witnesses whose evidence was not tested before the Tribunal, it was an error of law for the Panel to attach no weight to any of their evidence simply because the evidence was in written form only.
22. I have considered whether the errors of law I have identified are such as to require the decision to be set aside. As I have indicated, some documents which are said not to have been accompanied by certified translations are of potential relevance to the appellant's claim that he was involved in political activity in Bangladesh. Some of the letters from witnesses who were not called have the same potential relevance. At [52] the Panel purported to look at the position in the event that it was wrong to reject “any of the corroborative documentary evidence” for the reasons it gave. It stated that in that circumstance “we reject that documentation having treated it in the round having rejected the credibility of the Appellant.”
23. The difficulty with that approach to the documentary evidence is that it suggests a rejection of the documents because the appellant's credibility had been rejected. The use of the expression “in the round” is not sufficient to dispel the indication, in that alternative scenario, that the appellant's credibility was rejected before the documents had been considered. The Panel’s alternative approach is not a basis for concluding that the errors of law are not material to the outcome of the appeal. I would have come to the same view even had [52] been expressed in a way that was not open to the criticism that I have made, such is the comprehensive rejection of the documentary evidence.
24. I have also considered whether the other adverse credibility points are such that the rejection of the documentary evidence could have had no bearing on the outcome of the appeal. I do not consider that this could be said however. There are several credibility issues that arise in the determination but the documentary evidence is potentially relevant to an overall assessment of the appellant's claim.
25. I note that at [27] and [40] it was apparently agreed on behalf of the appellant that no new admissible evidence had been adduced since the last determination (of Judge Jhirad), counsel having stated that the evidence “had not been checked over thoroughly”. Notwithstanding that apparent concession however, the Panel did go on to consider the documentary evidence and for the reasons I have given its assessment of it was flawed. In addition, looking at [31] it is not the case that counsel for the appellant withdrew reliance on the documentary evidence, certainly not in relation to the letters from potential witnesses.
26. Judge Jhirad’s determination was plainly not determinative of the appeal before the Panel. Notwithstanding the other credibility issues that arise in relation to the appellant's account, I am satisfied that the errors of law are such as to require the determination of the First-tier Tribunal to be set aside. That conclusion applies in relation to the asylum ground of appeal as well as that in relation to Article 8, the two being inter-related.
27. The question then arises as to whether the decision should be re-made in the Upper Tribunal or remitted to the First-tier Tribunal. Mr Hashim suggested that it was appropriate to remit, Ms Holmes said that she resisted that suggestion “to some degree”, citing the appellant's lack of credibility.
28. I have considered the September 2012 Practice Statement at paragraph 7.2. I am satisfied that the nature and extent of the judicial fact finding necessary is such that having regard to the overriding objective in rule 2, it is appropriate for the appeal to be remitted to the First-tier Tribunal for a hearing de novo. None of the findings of fact, other than uncontentious matters such as the appellant's immigration history, can be preserved.
29. It is appropriate to observe that the hearing before the First-tier Tribunal was less than adequately prepared by those representing the appellant. This much is clear from the First-tier judge’s determination and what was said by the appellant’s representative at the time. It has to be said that I did not get the impression that the representatives were fully prepared for the hearing before the Upper Tribunal either, counsel for example not having the bundle that was before the First-tier Tribunal.
30. The re-hearing before the First-tier Tribunal must be adequately prepared for by those representing the appellant; that should go without saying. There must be a complete, paginated, indexed and comprehensive bundle of documents and those that are not in English must be accompanied by a certified translation. It is also the appellant's responsibility to ensure that his representatives prepare properly for the appeal.
31. Finally, I noted at the hearing before me that the letter from Mohammed Abdus Salam at page 42 of the bundle that was before the Upper Tribunal has the same address as that of the appellant's representatives. The author of the letter describes himself as the ex-General Secretary of the BNP-UK and gives an account of the appellant's political activities, and says that he is at risk in Bangladesh. The grounds of appeal to the First-tier Tribunal and that on the application for permission to appeal give the name of the solicitor having conduct of the appeal as Mohammed Abdus Salam. It appears to me that there is a clear conflict of interest in the solicitor having conduct of the appeal also being a witness in the proceedings. This is a matter that the appellant's solicitors will clearly have to consider in terms of the future conduct of the appeal.
32. Having consulted the listing department at Hatton Cross hearing centre, the appeal will be listed in the first instance for a CMR on the date indicated in the directions.
Decision
33. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal for reconsideration.

DIRECTIONS
1. The appeal is remitted to the First-tier Tribunal in accordance with Practice Statement paragraph 7.2 to be heard de novo by the First-tier Tribunal. None of the findings of the First-tier Tribunal in its determination promulgated on 2 August 2012 are to stand except as indicated at [28] above.
2. The appeal will be listed at Hatton Cross hearing centre, in the first instance for CMR on Monday 1 July 2013.
3. The appeal is to be heard by a judge or panel other than First-tier Tribunal Judge P.J.M. Hollingworth and non legal member Mr G.H. Getlevog.
4. Further directions as to listing may be left to the discretion of the First-tier Tribunal but are likely to include consideration of the question of the appellant's representation, the filing and serving of an appellant's bundle and for the respondent to file and serve the appellant's asylum and screening interviews.

Upper Tribunal Judge Kopieczek
6/06/13