The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00858/2012


Heard at Field House
Determination Promulgated
On 18th April 2013
On 11th June 2013





Anthony Matthews




For the Appellant: Mr Chirico, instructed by Wilson and Co
For the Respondent: Mr Avery, Senior Home Office Presenting Officer


1. The Appellant is a citizen of Jamaica, born on 8th October 1986. He has been given permission to appeal against the decision of the First-tier Tribunal dismissing his appeal against the Respondent’s decision that Section 32(5) of the UK Borders Act 2007 applied.
2. The history to the appeal is as follows. The Appellant was born on 8th October 1986 in Jamaica. He left that country on 15th December 2002 and arrived in the United Kingdom to join his mother and siblings. On 12th May 2003, an application was made for indefinite leave to remain in the United Kingdom as a child of a settled parent. This application was rejected on 2nd June 2003 but a further application was submitted on 10th June 2003 which was accepted and culminated in the grant of indefinite leave to remain on 7th November 2003.
3. On 7th June 2010 at Snaresbrook Crown Court the Appellant was convicted of an offence of robbery for which he was sentenced to a period of four years’ imprisonment. On 23rd July 2010, the Appellant was sent a notice of liability to deport. However a letter dated 6th September 2010 was received by his representatives claiming that he had been served this only on 23rd August 2010. Following this a liability to deportation notice was served upon the Appellant on 22nd October 2010. Representations were received that the Appellant sought to claim asylum. An interview subsequently took place but was not concluded. UKBA were later informed that he decided not to claim asylum in January 2011 however on 31st January it was confirmed that the Appellant did wish to pursue an asylum claim.
4. On 23rd October 2012 a deportation order was signed against the Appellant and a decision was made that Section 32(5) of the UK Borders Act 2007 applied. The Appellant exercised his right to appeal that decision and the appeal came before the First-tier Tribunal panel, consisting of First-tier Tribunal Judge Mayall and Mrs W Jordan, at Hatton Cross on 6th December 2012.
5. The Appellant appeared before the panel unrepresented. He had previously been represented by solicitors but it appears that shortly before the hearing the representatives came off record. The Appellant was in custody at this time. Those representatives had produced a short letter, dated 29th October 2012 setting out some matters that the Appellant wished to have taken into account. The Tribunal heard from the Appellant in short terms in that he accepted that matters in the interview and those in the refusal letter were true and that there was nothing else he wanted to add. In cross-examination, the Appellant was asked about his family circumstances and he confirmed that his mother, his aunt, two sisters and brother were in the United Kingdom. He said that his mother did not know that he was appearing in court and that “he himself did not think that he would be here”. He later appeared to be saying that the family had known about the hearing but did not know that he would be present and later in his evidence, the Appellant confirmed before the panel that he had not known that he was going to be at court today otherwise the family would have been at court. In essence, the Appellant told the panel that as he had lost his representation, he had not appreciated that the appeal would be going ahead and thus his family members were not present to give evidence on his behalf.
6. The panel reminded themselves that this was an automatic deportation case and that it was not in dispute that the Appellant was a foreign criminal within the meaning of Section 32 of the UK Borders Act 2007, his deportation was deemed to be conducive to the public good and that the Respondent must make a deportation order in respect of him unless one of the exceptions set out in Section 33 of the Act applied. They identified that in this case the Appellant’s rights under the Human Rights and Refugee Conventions would apply. The panel then set out a number of matters of law including that of Boultif v Switzerland[2001] 33 EHRR and the principles from Uner v Netherlands [2007] INLR 273.and reminded themselves that they should apply the five stage test approved by the House of Lords in Razgar and confirmed in EB (Kosovo) [2009] 1 AC 1159. They then dealt with the nature of the public interest and made reference to a number of cases dealing with those issues before considering the decision of the Upper Tribunal in MF (Nigeria) [2012] UKUT 00393. At paragraphs 44 to 51 the panel embarked upon a detailed consideration of the Tribunal’s decision in MF (Nigeria) and gave reasons as to why they considered that the principles in MF were not consistent with the view of the Court of Appeal in Gurung. However, the panel made it clear that they had not heard any argument on the point.
7. The panel then made an assessment of the evidence. They began by considering the asylum/Article 3 claim that had been raised by the Appellant based on return to Jamaica and his fear of serious harm at the risk of criminal gangs in Jamaica. The panel noted in respect of this issue that they were satisfied that they should uphold the certificate pursuant to Section 72(9)(b) of the Nationality, Immigration and Asylum Act 2002. They were satisfied that he had been convicted by final judgment of a particularly serious crime and constituted a danger to the community of the United Kingdom. They dismissed the asylum claim. The panel nonetheless considered the basis of his Article 3 claim between paragraphs 54 to 59. They did not accept that the Appellant was at any risk upon return to Jamaica in consideration of his personal circumstances nor did they consider insofar as his claim was based on a general fear that violence was prevalent in Jamaica and that he would be at risk on return.
8. The panel then turned to consider Article 8. They noted that the Appellant was unmarried and had no children and whilst he had claimed to be in a relationship, they did not accept that that relationship amounted to “family life” within the meaning of Article 8. The panel did accept that he had relatives in the United Kingdom including his mother and brothers and whilst accepting that there was a genuine bond of affection between him and other family members (as evidenced by the letters produced to the Respondent) they did not accept that it amounted to family life within the meaning of Article 8 as there was no evidence to demonstrate that it went beyond the normal emotional ties expected between adult relatives. The panel noted that in respect of his sister, who was a minor, that they had heard no real evidence as to the relationship between the Appellant and her. Thus they reached the conclusion that the relationship had not been demonstrated to be more than one that would be expected between a 16 year old girl and her adult brother. The panel further accepted that the Appellant was concerned about his mother’s health. There had been a number of medical reports placed before the Tribunal historically concerning his mother’s health and that she suffered from a brain tumour which was being medically controlled. They noted that there had been no evidence concerning the medical aspect of his mother and whilst his concern for her was understandable it did not amount to “family life within the meaning of Article 8”.
9. The panel then turned to the Appellant’s private life. They accepted that during the time that he had been in the UK he would have established a private life. They found the questions in Razgar to be answered in the affirmative leading to that of proportionality. In respect of this issue, they noted that the Appellant had spent slightly over half of his life in Jamaica and that he was a relatively young and fit man. Whilst they accepted that he may not have any close relatives living in Jamaica that he would have no difficulties establishing a private life and nothing to prevent his family from visiting him. The panel then went on to deal with the offence in the case which they considered was extremely serious. They found this to be reflected in the sentence passed and the sentencing remarks. They further noted that there was “no evidence before us as to any professional assessment of the risk of re-offending.” They went on to note that in the evidence that they heard, he accepted that he was still using cannabis and they found that to be disturbing. Having balanced the factors and weighed up the evidence, the panel reached the conclusion that the public interest vastly outweighed the factors in favour of the Appellant and reached the conclusion that his removal would not be a disproportionate interference in his Article 8 rights. The panel then added that even if they had been satisfied that it amounted to having been established a family life in the UK, they would still have been satisfied the decision was proportionate. In those circumstances the panel were satisfied that none of the exceptions applied in this case. Thus the appeal was dismissed.
10. Permission to appeal was sought on behalf of the Appellant. It was refused initially but upon renewal was granted by Upper Tribunal Judge Spencer on 14th February 2013. The grounds, in summary assert that there was firstly a procedural unfairness in this appeal as the Tribunal had not considered the duties towards a person like the Appellant who was left without legal representation (see AK (Iran) v The SSHD [2008] EWCA Civ 941). It is asserted that on the facts of this appeal, the panel was presented with an unrepresented and detained Appellant who had recently lost his representation. There was no suggestion that this was as a result of prevarication or delay on the Appellant’s own part and that it was clear on the face of the determination that the panel was made aware of the fact that the Appellant would have presented the case differently had he been aware of the relevant procedure (see paragraph 29 of the determination). Furthermore, when considering the procedural fairness of the appeal, the panel had received no submissions on the Appellant’s behalf on any points of law and they had not been raised with the Appellant. It was further argued in the grounds that even if the panel had been entitled to proceed without considering the possibility of an adjournment that the panel fell into error in its assessment of the issue of Article 8 and in particular the family life between the Appellant as a young adult and his family members in the UK. The panel had no regard to documentary evidence concerning the Appellant’s conduct since offending or about his rehabilitation. The panel had relied expressly upon the fact that there had been no evidence before them without making any enquiry as to why there had been no such evidence or whether a short adjournment would permit the Appellant, who was unrepresented, to produce such evidence. There had now been evidence before the Tribunal in the form of an extract of the OASys report and evidence of courses undertaken in prison which were relevant to the issue of reoffending which would have been made available had enquiry been made by the panel.
11. At the hearing before us, Mr Chirico on behalf of the Appellant relied upon the grounds of appeal as drafted by himself on 30th January 2013. It is not necessary for us to set out in great detail the submissions made on behalf of the Appellant as the grounds of appeal drafted by Mr Chirico are substantial and set out all matters raised on behalf of the Appellant. It is only necessary to summarise the main points from those grounds.
12. In respect of the ground relating to procedural fairness, he reminded the Tribunal that it had powers to ensure that procedures were fair including case management powers which included the power to adjourn. He referred us to the decision of AK (Iran) (as cited) which is relevant to this particular Appellant’s circumstances who appeared before the panel unrepresented having lost his representation shortly before the hearing. He invited the Tribunal to consider the situation that the Appellant was in by reference to a recent statement produced by the Appellant. He submitted that there was no suggestion on the face of the determination that the panel considered at any point that there should be an adjournment of the appeal or to invite him to make such an application. As a result, the Appellant had not appreciated that the appeal would proceed on the basis of having lost his representation but also having been in custody and unable to obtain representation. Whilst the panel does not have to adjourn all proceedings where an Appellant appears unrepresented, they should consider the particular individual’s circumstances and whether there is any prejudice. In its determination there is no indication that the panel gave any consideration to such an application at paragraph 7. As regards the effect upon relevant evidence, his mother did not know he was appearing at court (paragraph 14) and he himself did not know that he would be at court. In his statement he stated that he did not think that the case would have proceeded otherwise his family members would have been at court and that was supported by reference at paragraph 29 of the determination to that proposition. Thus the family members, who could speak to the issues concerning Article 8 were not present at the hearing. It was submitted further that even if not clear at the outset that there were potential difficulties in law and fact, as recognised at paragraph 29 that had he known that he had been in court and the case proceeding the other family members would have been present. The absence of witnesses that would have been called was material particularly as weight appeared to be given to the Respondent’s submission at paragraph 27 that he had no witnesses present concerning his “family life” and at paragraph 61 the panel’s finding that there was no real evidence concerning the relationship between the Appellant and his sister.
13. In this case the failure to adjourn led to other difficulties identified in the grounds. The panel had concluded that the Appellant did not enjoy family life in the United Kingdom however an important aspect was missing from their assessment which they did not take into account namely that he was a young adult who had remained at home living with his mother, siblings and aunt throughout his time in the UK. The Appellant’s circumstances plainly required an enquiry into those facts but they were not taken into account nor were enquiries made about this. There was no reference to the jurisprudence on issues relevant to this particular Appellant’s circumstances and thus the panel reached the conclusion that there was no family life upon a false basis and thus their assessment was flawed. Whilst at paragraph 27, they appeared to say that even if they found family life, they would be satisfied that the decision was proportionate, this was simply a generic reference made that could not supplant clear findings concerning the nature of family life which had not been carried out by the panel.
14. The third issue identified related to the Appellant’s risk of reoffending. The panel stated that there was no evidence as to his conduct since reoffending without making any further enquiry. They noted that there was no professional evidence relating to this but now it is clear that there has been an extract from a document which is said to be an OASys report which would have been made available had the Appellant had the opportunity to obtain legal representation to deal with this issue. As Masih recognises, the Appellant’s situation at the date of the hearing should be considered including his conduct after his offence which would include the consideration of OASys reports or consideration of any courses that were undertaken. As to this there was a factual error made by the panel in which the panel relied upon evidence they said the Appellant had told them concerning the use of cannabis whilst in custody. The Appellant denied saying that he had smoked cannabis but that he referred to smoking “weed” which was not cannabis but amber leaf which is a standard tobacco and thus based on that misunderstanding of the evidence the panel took that into account when making an assessment of the risk of reoffending.
15. Mr Avery submitted that there was no indication from the determination that the Appellant had applied for an adjournment nor was there anything to indicate that he would or that he could obtain further representatives in a short timescale or give any indication of whether an adjournment was appropriate. Whilst submissions have been made concerning the fact that family members were not present at court, the panel did not draw any adverse inference from their failure to attend and did give their statements appropriate weight. An issue has been raised concerning family life but the panel considered that in the light of the seriousness of the offence which was a very serious one. His connections were not strong having come to the UK at 16. Whilst there have been criticisms made of the Appellant’s risk of reoffending, the panel did appear to take into account the Appellant’s own evidence concerning the use of cannabis. There was no Presenting Officer’s note on file to confirm what the Appellant had said in evidence. At this point, we considered the Record of Proceedings in the file. The relevant part as far as we could ascertain appeared to be the following “still taking cannabis (which appeared to be a question) the answer I smoke weed.” Mr Avery submitted that the panel’s concerns about reoffending were justified. He submitted that the outcome would not be any different in this case and that there was nothing sufficient before the panel to lead them to conclude that the Appellant should have been granted an adjournment.
16. By way of reply Mr Chirico submitted that the issue relating to cannabis was not a separate ground of appeal however it did appear that there was some misunderstanding concerning this as evidenced by the Record of Proceedings. Furthermore, the Appellant is entitled to a fair hearing in a balancing exercise. In a case where the Appellant did not have a fair hearing, it should not fail on materiality aspects. In this case, the alternative finding as to family life was generic and was not a proper assessment of family life as it was not specific to the circumstances of the Appellant, it did not say what kind of life there was between the Appellant and the family members and that such cases are fact-sensitive. Thus the finding in the alternative could not be relied upon. In those circumstances the only fair outcome for the Appellant was for the case to be set aside and for the appeal to be heard taking into account all the evidence that was available.
17. We reserved our determination.
Conclusions on the error of law:
18. The thrust of the submissions stem from the procedure adopted by the panel and in the circumstances of this particular Appellant who appeared unrepresented before them, having been left without legal representation shortly before the hearing.
19. The Tribunal’s duties towards a person who is left without legal representation was considered by the Court of Appeal in the decision of AK (Iran) v The SSHD [2008] EWCA Civ 941. In that case it had not been clear from the material before the court whether the Appellant had asked for an adjournment and had been refused one or whether upon learning what had happened, the judge failed to offer him one. The court considered that in either event, the question was “was the Appellant treated with a degree of unfairness sufficient to vitiate the eventual determination.” The court considered Rule 21 of the 2005 Procedure Rules (as amended) noting that the first three limbs were predicated on the basis of a party having applied for an adjournment. They considered that if there was no such application then Rule 21 had no immediate relevance. However at paragraph 21 the court went on to state,
“but it is of considerable direct relevance if there is a continuing obligation on the judge to keep an eye on the fairness of his or her own proceedings because it cannot be right that a less stringent test is to be used if nobody has actually applied for an adjournment.”
Thus the court considered that where an Appellant has found himself without representation at a hearing at which it is apparent that professional representation would be of benefit to him, it is incumbent upon the judge to consider whether the appeal could be justly determined without a fair opportunity to obtain representation (by adopting the vocabulary of Rule 21(2)).
20. In the decision of the panel, it does not appear that the Appellant made any application for an adjournment. In the statement which has been produced before us concerning the error of law, he stated that he did not know that he could do so. However it is clear that the Appellant was unrepresented and the circumstances in which this had arisen. What is clear from the determination is that the Tribunal did take steps to ensure that he understood the procedure and ascertained whether or not he wished to give evidence before the Tribunal (see paragraph 7).
21. In reaching a conclusion on this issue we remind ourselves that there is no inalienable right to representation and that it is not unusual for parties to represent themselves before the Tribunal and that in the coming future it is likely that the Tribunal will deal with many more cases of unrepresented Appellants given the changes to the legal aid provisions. It is also right to observe that it is a routine part of the work of a Tribunal Judge to deal with cases where an Appellant is unrepresented. Nonetheless, we have given careful consideration to the submissions made by Mr Chirico and the decision of AK (Iran) (as cited) and have reached the conclusion that the panel fell into error. On the face of the determination, it does not appear that the Appellant asked for an adjournment. However we place no weight upon that, it is reasonable in the circumstances and in the light of the statement that he has produced that he would not know the exact procedure that would be required. It is also clear that the panel were aware that the Appellant was unrepresented and the circumstances of this and he was therefore no longer with representation although he was in custody. There is no reference in the determination as to whether they considered the questions identified by the Court of Appeal as to whether the appeal could be justly determined without a fair opportunity to obtain representation nor whether to address the question with the Appellant himself by asking him what steps had been taken to obtain any representation or questions concerning timescale if any representatives could be instructed. Furthermore to consider whether there was a realistic prospect of obtaining such representation in a short timescale. The Tribunal should have considered this of its own motion (see paragraph 23 of the decision of AK (Iran)).
22. In this case, had the Tribunal asked itself those questions, there is a likelihood that they may have reached the conclusion that there would have been the prospect of instructing representatives in a short timescale. As indicated for this appeal, the Appellant after receiving the decision obtained representation quickly. Furthermore, an adjournment would have made a difference to the evidence that would have been placed before it. It was part of the Appellant’s case that his deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention and thus was an exception under the UK Borders Act relying upon the existence of his family life and private life established since his arrival in 2003. This was a matter referred to in the refusal letter and taken into account by the Secretary of State. There were potentially a number of family members whose evidence was relevant in considering this issue including the Appellant’s mother, aunt, two sisters and brother including a minor. It is recorded in the determination that the Appellant confirmed that his mother was in the UK but did not know that there was an appeal hearing and “he himself did not think he would be there.” This has been explained by the Appellant subsequently that he had not anticipated that the hearing would have gone ahead in the light of his lack of representation. We note that the evidence recorded at paragraph 14 is not consistent with that recorded at paragraph 15 where it appears that he was asked whether family members had been told about the hearing and he said that they knew but they did not think that he would be present. It does seem to conflict with paragraph 14 where the Appellant had said that his mother did not know there was an appeal hearing. However what is clear is what the panel recorded at paragraph 29 where the Appellant stated “he had not known that he was going to be at court today otherwise the family would have been there.”
23. The Appellant was clearly referring to relevant evidence that would have been put before the Tribunal had he appreciated that the case would have gone on in the absence of any representation. We consider that further enquiries should have been undertaken which would have had particular relevance to the facts of this appeal. The Respondent’s submissions at paragraph 27 were premised on the basis that he had no family life as “there were no witnesses.” We do not find that that in itself was used as a basis for drawing any adverse inference by the panel, however the panel did say at paragraph 67 when considering the relationship between the Appellant and his minor sister that they had no real evidence concerning the relationship between the Appellant and his sister.
24. Other issues arise from the Appellant’s lack of representation. The court recognised in AK (Iran) that there would be cases in which it may be apparent that there are issues which the Appellant is not going to be able to deal with. There were two potential issues identified in the grounds that fall into this category, namely Article 8 and the risk of reoffending. A feature in this case which appears to be absent from the factual matrix is that the Appellant arrived in the United Kingdom as a minor aged 16 and had been living continuously with his mother, aunt and siblings. This is relevant to the consideration of Article 8 in relation to the existence of family life and the proportionality of any interference with it. The panel did not find that there was any family life and that Article 8 was engaged because they stated that there was no evidence before them to suggest the relationship between the Appellant and his family members went “beyond normal emotional ties”. In respect of his sister, who was a minor, they said “we have heard no real evidence as to the relationship between the Appellant and her. We do not consider the relationship demonstrates anything more than one would expect between a 16 year old and her brother.” However as a result of the procedure adopted, the Appellant did not have the opportunity to call witnesses on his behalf in respect of the family life he claimed to have established in the United Kingdom. Nor does it appear that he was asked about the nature of his family life or that he appreciated the significance of those factual matters. There is much jurisprudence concerning the issue of family life between adult members. It is not necessary for us to set out that jurisprudence here. The question generally arises, when does an adult child cease to enjoy family life with his parents for the purposes of Article 8. The case most frequently cited is that of Kugathas v The SSHD [2003] EWCA Civ 31. The panel did not refer to this case although we accept that at paragraph 61 the panel made reference to some of the terminology used in that decision. It has been recognised that family life may continue between parents and adult children even after the child has attained majority and as we have observed earlier there is much jurisprudence on this area and as cited in the grounds for permission before us. What is clear is that each case is fact-sensitive and has to be analysed on its own facts. As Kugathas identifies relevant factors include identifying who are the near relatives, the nature of the links between them, the ages, where and with whom they resided in the past, form of contact maintained and other such factors. The panel do not make any reference to the past cohabitation of the Appellant with the family members and it appears that there was no enquiry into this issue when making an assessment. That is not a criticism of the panel as the Appellant may not have appreciated the significance of these factors and was unrepresented and there were no witnesses to speak to such facts. We take into account that the panel later on in the determination recorded that even if there was family life they were satisfied the decision was proportionate. We do not consider that to be sufficient to deal with the issue. The factual elements as to what constituted family life had not been considered earlier as the panel reached the conclusion that family life was not engaged.
25. The second issue relates to the issue of reoffending. Whilst the Appellant did say that he had completed courses, there was no enquiry as to what they were or how it was relevant to the offence that he had committed. The Appellant would not have been likely to appreciate the significance of this. As identified in the decision of Masih, the court is required to consider the situation at the date of the hearing including taking into account full developments since sentence passed, whether there had been any adjudications or the contents of any OASys report. The panel record that there was no professional report considering assessment of risk of reoffending but it appears that there were documents in existence (unknown to the Appellant) which could have been considered; one document is described as an extract from an OASys report. Whilst those documents cannot themselves give rise to an error of law, they are relevant to the issue as to whether or not they were matters that the Appellant was unable to deal with due to his lack of representation before the panel. There has been some issue concerning a misunderstanding of the evidence of the Appellant relating to whether or not he had smoked cannabis in prison. This does not in itself form any separate ground and we make no finding upon that. Nor do we consider that ground 4 really has any relevance to the issues.
26. Having considered the grounds in the light of the determination and the submissions made by the parties, we find that an error of law has been established for the reasons set out above. It was agreed by all parties that if we were to find an error of law in the decision that the correct course would be for the matter to be remitted to the First-tier Tribunal for hearing. Therefore the decision of the First-tier Tribunal is set aside and the case is to be remitted to the First-tier Tribunal for a hearing in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act at paragraph 7.2 of the practice statement of 10th February 2010 (as amended).
The decision of the First-tier Tribunal is set aside and the case is to be remitted to the First-tier Tribunal at Taylor House or Hatton Cross for a hearing in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act at paragraph 7.2 of the practice statement of 10th February 2010 (as amended).

Signed Date: 7/6/2013

Upper Tribunal Judge Reeds