Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00428/2015

THE IMMIGRATION ACTS

Heard at Field House
Oral judgment given at hearing
Decision & Reasons Promulgated
On 30 March 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

MR FARID CHAOU
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U Dirie, Counsel
For the Respondent: Mr J Parkinson, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of France born in 1974. On 21 July 2015 the respondent made a decision to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006 (" the EEA Regulations"). That decision resulted from the appellant’s recent convictions, in respect of which the details are not clear from the documents before me. It appears from the respondent's decision that on 4 February 2014 he was convicted of possession of identity documents with intent, presumably to deceive, whereby he received a sentence of six months’ imprisonment. On 13 March 2015 in the Crown Court at Manchester he was sentenced to 13 months’ imprisonment for affray. It was ultimately that last conviction which prompted the respondent’s decision. By way of background it is important to recognise that the appellant had since 2005 been convicted of various offences.
2. His appeal against the respondent’s decision came before First-tier Tribunal Judge Brunnen ("the FtJ") at Manchester on 8 August 2016. After the decision, but prior to the hearing before him, the appellant had been removed to France pursuant to Regulation 24AA of the EEA Regulations.
3. The FtJ proceeded in the appellant’s absence, as indeed he was bound to do given that the appellant had been removed. However, in the absence of any representation on behalf of the appellant he refused an application for an adjournment.
4. In his decision he made findings in terms of the appellant’s circumstances since he had been in the UK, apparently arriving in the year 2000. He concluded that the documents provided did not establish when the appellant had exercised Treaty rights in the UK, and indeed he concluded that they did not even establish that he had been continuously resident in the UK.
5. At [24] he said that the evidence in relation to the appellant having a wife and child in the UK was inadequate, the evidence only coming from copies of the passport of the person said to be his wife and child, and the child’s short-form birth certificate. He concluded that the documents did not establish that the appellant has ever been in a relationship with her or that he is the father of the child. He noted that there was no statement from the woman in question.
6. At [25] he found that there was no evidence concerning any other aspect of the appellant’s life which might show that he had integrated into UK society. Ultimately, he concluded that the appellant had only established that he was entitled to the lowest level of protection against removal, that is to say on grounds of public policy, public security or public health. He had not established 10 years’ residence within the meaning of the EEA Regulations, partly as a result of his conviction and partly in terms of the continuity of residence, in principle, having been interrupted by his term of imprisonment. He noted that the period was to be counted back from the date of the respondent’s decision. He took into account the appellant’s convictions and said that there was no evidence that he had changed or that there was no risk, or even a slight risk, that he would not re-offend. There was no evidence of any social circumstances that might prevent or discourage him from re-offending and he made observations about the prospects of rehabilitation not being any better in the UK than in France.
7. He said at [32] that there was no evidence as to the appellant's state of health other than vague references in his representative’s letters to his mental health now being poor. However, he noted that there was no medical evidence to support those assertions.
8. The grounds in support of the appeal to the Upper Tribunal relate exclusively to the FtJ’s decision to refuse to adjourn the hearing. There is reference to the arguments that could have been deployed on his behalf in terms of his residence and his relationships in the UK.
9. The question of the adjournment was dealt with between [3] and [6] of the decision. At [3] he said that the hearing had been listed for 25 May 2016 but was adjourned at the appellant’s request. On 27 May it was relisted to be heard on 8 August. On 28 July and again on 5 August the University of Law, representatives then acting for the appellant, applied for the hearing to be adjourned again. The FtJ noted that both of those requests were refused by a Designated Immigration Judge on the ground that there had been ample time for the appellant’s case to be prepared.
10. At [4] he said that in their letter of 5 August the University of Law stated that they were no longer acting for the appellant. They stated that Bail for Immigration Detainees ("BID"), were to take over the case. He noted that BID had not notified the Tribunal of their interest in the case so far as is apparent, and had apparently not taken any steps to represent him. He noted at [5] that the appellant had been removed to France in April pursuant to reg 24AA of the EEA Regulations and that there was no application under reg 29AA for him to be permitted to return so as to be able to take part in the hearing. At [6] he said as follows:
“It is clear from the representatives’ letters that they and the Appellant were aware of the place, date and time of the hearing. In all the above circumstances I was satisfied that I was empowered by Rule 28 of the 2014 Procedure Rules to proceed with the hearing in the Appellant’s absence and I was satisfied that it was in the interests of justice that I should do so”.
He then proceeded with the hearing and made the findings to which I have referred.
11. The FtJ was correct to have said that the hearing was adjourned when it was listed for 25 May 2016 at the appellant’s request. The documents on the Tribunal file indicate that that is so.
12. The further application for adjournment was initially instigated by letter dated 28 July 2016 by the University of Law. That letter said that further to their request in relation to 25 May 2016 hearing having been granted on the basis that they were applying for exceptional funding, they were writing to seek an adjournment for the 8 August 2016 hearing. The letter states that the grounds of their last request included the fact that they were making an exceptional funding application on behalf of the appellant. It goes on to state that they had been unsuccessful so far and were currently reviewing a further application for exceptional funding or a challenge to the refusal. It was also said in the letter that they were referring the case for pro bono representation to be undertaken by BID, a partner of the Deportation Project the university and BID were both involved with. It states that their immigration solicitor was leaving the University of Law and was unable to take the case forward, and that BID had agreed to take the referral but requested that any adjournment be made from October onwards due to limited resources at that time.]
13. The next letter, dated 5 August 2016, referred to the previous request and stated that the letter refusing the adjournment had only just been received that day, Friday 5 August at 2.30 p.m. It then states that the case had been referred to BID and that they no longer acted for the appellant. The letter states that they did not “progress the case” whilst they were applying for exceptional funding as they deemed the client to be vulnerable and in need of specialist expert reports. It also states that it had been very difficult to take instructions as a result. Because the appellant was deported a very short time after they first took on his case it had not been easy to keep in contact with him. It states that they had forwarded the response of the Tribunal to BID but they knew that the caseworker does not work on Fridays. The letter concludes by stating that the appellant would not be present for the hearing, nor would he have any representation. It asked that in the interests of fairness and justice the Tribunal adjourn the hearing so that he can properly be represented in his appeal against deportation.
14. I have already quoted [6] of the FtJ’s decision. It seems to me that his decision does not analyse the reasons behind the request for an adjournment or give detailed reasons as to why the arguments advanced were not persuasive. It is true that the narrative is contained from [3], setting out the background to the applications but there is nothing by way of analysis by the FtJ of the arguments advanced.
15. The FtJ did not explain why the proceedings ought to proceed in the absence of the appellant or any representation on his behalf, simply at [6] stating that the appellant and representatives were aware of the hearing and that it was in the interests of justice to proceed. I am not satisfied that there was a consideration of the circumstances behind the application.
16. Furthermore, it seems to me important that there should have been some recognition on the part of the FtJ that this was an out of country appeal at which the appellant himself would not be attending. It was not suggested that there was evidence to indicate that there was any intent on the part of the appellant to delay a hearing, and plainly nor could it have been an attempt on his part to provide some pretext for extending his stay in the UK.
17. Given that the appellant had been removed from the UK, it seems to me that the FtJ should have been astute to ensure that there was fairness in the proceedings, not only because the appellant would not be attending but also because he would not be represented. His decision ought to have recognised that there may be particular difficulties in presenting an appeal, and even obtaining representation, where an appellant is not permitted to be present for a hearing because he is outside the UK.
18. The scrutiny that needed to be applied is heightened in this case because it does not appear that the appellant was able to pay for representation on his own behalf. It was submitted on behalf of the respondent before me that there was, to summarise, a lack of evidence in support of the appeal and that therefore fortified the decision to refuse to adjourn the hearing. I reject that submission for two reasons. Firstly, those were not the reasons given by the FtJ for refusing to adjourn the appeal. Secondly, in a sense the converse of the respondent's argument is true, because if the judge had had sufficient information he could have said there was no benefit in adjourning the hearing because there was material sufficiently before him to allow him to make a just determination of the appeal. It was clear in this case however, that there was insufficient information for him to undertake a fair assessment of the issues that needed to be determined. That ties in with what the appellant's representatives had said about the difficulties in preparing his case.
19. No doubt in the majority of cases the circumstances would not warrant an adjournment where an appellant has had sufficient time to prepare and where it is apparent that a fair hearing can proceed. I am not satisfied that this was such a case. The FtJ's reasons are not clear from his decision, but more significantly, I am not satisfied that the fairness of the case merited his proceeding in the absence of the appellant. In those circumstances, I am satisfied that the FtJ erred in law in his decision. That error of law is such as to require the decision to be set aside.
20. The options therefore, are for the decision to be re-made in the Upper Tribunal or for the appeal to be remitted to the First-tier Tribunal. Having regard to the Senior President’s Practice Statement at [7.2] I consider that the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judges Brunnen (or Grimmett who heard the appeal previously). No findings of fact are to be preserved except as agreed between the parties.
Decision
21. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside and the appeal remitted to the First-tier Tribunal in accordance with the preceding paragraph.

Upper Tribunal Judge Kopieczek 18/04/17