Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04452/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 13 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

galal yahya abou el fetouh salem
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representative
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Moore (the judge), promulgated on 26 August 2016, in which he dismissed the Appellant’s appeal. That appeal had been against the Respondent’s decision of 8 August 2015 refusing him leave to remain on human rights grounds.
2. The Appellant had last entered the United Kingdom on 15 June 2013. He resided here with leave to remain as a Tier 5 Religious Worker, that leave running until 30 May 2015. By an application dated 29 May 2015 he sought an extension of leave. This application was based primarily on his relationship with Ms BN, a British national, and her two children (who are not those of the Appellant himself). In refusing the application the Respondent did not accept the relationship and concluded that the Appellant’s removal from the United Kingdom would not breach his Article 8 rights.

The judge’s decision
3. The hearing before the judge took place on 17 August 2016. There was no Presenting Officer for the Respondent and the Appellant was not legally represented. This was as a result of his Counsel withdrawing representation on the day of the hearing. The particular reasons for this are not stated by the judge (and of course it would have been very unlikely that he would have been entitled to enquire as to those reasons). It is stated at paragraph 6 of the decision that Counsel informed the judge that he would no longer be representing, and that the Appellant would represent himself. At the beginning of paragraph 7 the judge states that he:
“…informed the Appellant that since he was no longer legally represented and wished to represent himself then I would try to assist him in the presentation of his evidence”.
4. In the following paragraphs the judge makes reference to BN’s attendance at the hearing and her desire to give evidence whilst wearing a veil. The judge permitted her to do so and he notes the evidence given both by BN and the Appellant. There was an additional witness as well.
5. At paragraphs 14 and 15 the judge states that the Appellant was able to follow most of the proceedings without the need of an interpreter. It is recorded that the Appellant was content with proceeding in this way and although it is said that the assistance of the interpreter was required on occasion, the judge states that he had endeavoured to assist the Appellant in the presentation of his evidence. Given the withdrawal of representation, the judge outlined to the Appellant the contents of the Respondent’s refusal letter and that any evidence at the hearing should be directed towards the points taken therein.
6. At paragraphs 25 onwards the judge sets out his findings of fact and conclusions. In essence he finds there to have been several material inconsistencies in the evidence relating in particular to the nature of the relationship. Ultimately he concludes that the relationship was not genuine and subsisting. The best interests of BN’s two children are dealt with at paragraphs 35 and 36. Ultimately Article 8 is said not to be breached in any way and the appeal is dismissed.

Grounds of appeal and permission to appeal
7. The grounds are short and appear to have been written by the Appellant himself. He makes the point that following the withdrawal of his legal representative at the hearing he should have been given what he describes as “the right” to decide whether to represent himself or find alternative representation. The Appellant asserts that this latter possibility was not raised by the judge or at least was not made clear to him. The assertion is made that their relationship between himself and BN was indeed genuine and subsisting.
8. Permission was granted by First-tier Tribunal Judge P J M Hollingworth on 25 January 2017. In doing so the judge expresses the view that the issue of alternative legal representation had arguably not been properly dealt with by the judge at the hearing and this may have led to material procedural unfairness.

The hearing before me
9. The Appellant did not attend the hearing. There had been no communications from him. I was satisfied that the notice of hearing was sent out to his last known address on 9 March 2017. There is nothing to suggest that this notice was returned undelivered. Having considered Rules 2 and 38 of the Upper Tribunal Procedure Rules I considered it was fair and in the interests of justice to proceed in the Appellant’s absence.
10. Mr Singh submitted that it was implicit in paragraph 7 of the judge’s decision that the Appellant had in fact agreed to represent himself at that hearing without wishing to seek alternative legal representation. Mr Singh added that it was clear enough that the judge had assisted the Appellant in the presentation of his case. There were no errors of law. If there were material errors on the basis of procedural unfairness the matter should be remitted to the First-tier Tribunal for findings of fact to be made.

Decision on error of law
11. With a degree of hesitation I conclude that the judge has materially erred in law. This is because it is just not clear enough from either the face of the decision itself or any other materials before me (including the Record of Proceedings) as to whether the judge expressly asked the Appellant whether or not he wished to find alternative legal representation given the particular circumstances on the day of hearing.
12. In relation to what is said in paragraph 6 of the decision it may well be right that Counsel, upon withdrawing his representation, informed the judge that at that point the Appellant would be representing himself: here would be nothing controversial in this. However that would not be the end of the matter because once the hearing began (in the absence of Counsel) the judge should in my view have expressly put it to the Appellant that he could seek or at least could consider whether or not he wanted to seek alternative legal representation. I appreciate what the first sentence of paragraph 7 says, and that the words “wish to represent himself” might imply that a positive decision had been made by the Appellant to proceed in any event. As is mentioned in the grant of permission that may equally have been an assumption on the part of the judge, and as I have already mentioned the Record of Proceedings and other materials on file simply do not make it clear enough that a conscious decision was made by the Appellant following an express consultation by the judge. There was in my view procedural unfairness.
13. The question then is whether it was material to the outcome of the appeal. Again, with some hesitation I conclude that it was. It is clear there had been inconsistencies in the evidence and it may be that those inconsistencies would have arisen whether or not there was legal representation. However there is at least a real chance that alternative legal representation could have made a difference to the way in which the evidence was presented and/or dealt with by way of submissions.
14. In light of the above I set aside the judge’s decision.

Disposal
15. I have concerns as to whether the Appellant will attend any future hearing given his non-attendance before me. I have carefully considered whether or not I should retain this matter in the Upper Tribunal and deal with it on the evidence before me. However remittal has been urged upon me by Mr Singh and having regard to paragraph 7.2 of the relevant Practice Statement I conclude that remittal is appropriate. The Appellant will have an opportunity to find alternative legal representation. Whether he does or not is a matter for him. He is of course entitled to represent himself.
16. In my view no preserved findings of fact should be taken in respect of the remitted hearing.

Notice of Decision
The decision of the First-tier Tribunal contained material errors of law.
The decision of the First-tier Tribunal is set aside.
I remit the appeal to the First-tier Tribunal.
No anonymity direction is made.

Signed Date: 10 April 2017
Deputy Upper Tribunal Judge Norton-Taylor