Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11658/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 October 2019
On 17 October 2019

Before

UPPER TRIBUNAL JUDGE REEDS

Between

OO
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Goba, Solicitor Advocate instructed on behalf of the Appellant
For the Respondent: Ms A. Everett, Senior Presenting Officer

DECISION AND REASONS
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings
1. The Appellant, with permission, appeals against the decision of the First-tier Tribunal, who, in a determination promulgated on the 5 June 2019, dismissed her human rights claim.
2. The Appellant's immigration history is set out within the determination at paragraphs 1 and in the papers before the Tribunal. The appellant entered the UK in 2006 as a visitor and in 2012, 2014 and 2016 made applications on human rights grounds (family and private life) which were refused. The present application was made on the 5th December 2016.
3. The Respondent refused her claim on human rights grounds in a decision letter dated 15 May 2018.
4. The Appellant appealed that decision having submitted grounds of appeal by her former representatives. The hearing came before the First Tier Tribunal on the 14th May 2019. The appellant was not in attendance but was represented by Counsel. It had been submitted that the appellant could not attend the hearing due to her medical condition and also that as she had recently changed her solicitors, they had not obtained her file or been in the position to provide any bundle of documents or obtain a medical report. In that decision at paragraphs 7-16 the FtTJ set out the procedural history of the appeal which included a previous application for an adjournment made and granted in December 2018 and that directions had been issued (see paragraphs 9-11).
5. In a determination promulgated on the 5 June 2019, the judge dismissed her appeal having reached the conclusion that an adjournment should not be granted and thus decided the appeal in the absence of the appellant and any documentation save for that sent to the respondent.
6. The Appellant sought permission to appeal that decision and permission was granted by the First-tier Tribunal Judge Hollingworth on the 18th July 2019.
7. Thus the appeal came before the Upper Tribunal. Mr Goba appeared before the Upper Tribunal and relied upon the grounds as drafted and placed reliance on the medical evidence but particularly that which was sent to the FtTJ on the 15th May 2019, the day after the hearing which is set out at page 24 of the bundle.
8. I was also able to hear submissions from Ms Everett, Senior Presenting Officer on behalf of the Respondent. Given that the issue was one of unfairness and the reliance on the material available to the FtTJ before promulgation of the decision, she left it to the Tribunal to decide the issue of whether there had been any procedural irregularity.
9. After hearing their respective submissions, I informed the advocates that I had reached a conclusion that the decision of the First-tier Tribunal disclosed the making of an error on a point of law. I outlined the parties my reasons in summary for reaching that decision. I now set out for the avoidance of doubt why I had reached that conclusion on the evidence before me.
10. The thrust of the grounds relates to a point of procedural unfairness and the decision made to refuse the adjournment request made on behalf of the Appellant and on the basis that a medical report was provided the day after the hearing ( but before promulgation of the decision) which supported the basis of the adjournment.
11. The 2014 Procedure Rules Rule 4(3)(h) empowers the Tribunal to adjourn a hearing. Rule 2 sets out the overriding objectives under the Rules which the Tribunal "must seek to give effect to" when exercising any power under the Rules. It follows that they are the issues to be considered on an adjournment application as well. The overriding objective is deal with cases fairly and justly. This is defined as including "(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; (e) avoiding delay so far as compatible with proper consideration of the issues".
12. The grounds refer to the decision of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). In that case it was held that If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing?
13. There is no dispute as to the factual history and it was open to the FtTJ to assess the application for an adjournment by taking into account that history and that there had been a previous hearing adjourned in December 2018 to enable the applicant to give instructions to her solicitors and for a medical report to be produced and for witness statements to be filed by the 11 January 2019. It was further open to the FtTJ to take into account the contents of the previous letters produced relating to the appellant's medical circumstances. However, a medical report was provided to the FtTJ on the day following the hearing which answered the questions and the issues the FtTJ had to address and importantly, whether the appellant was fit to attend the hearing and give evidence. Mr Goba has provided a copy of the delivery slip (see page 27) and it seems to be common ground that the report was sent to the FtT. Given the contents of the report which addressed the issues, this was material which was relevant to whether the adjournment should have been granted. It would have been open to the FtTJ in the circumstances to either re-open the hearing by giving further directions as the material was produced prior to the promulgation of the decision.
14. Whilst the judge made reference to the principles set out in the Procedure Rules at paragraph 15 the judge failed to take into account the relevant report prior to the promulgation of the decision which did support the oral submission made on behalf of the appellant.
15. Having considered the grounds and in the context of the decision of Nwaigwe as set out above, I am satisfied that it has been established that there was procedural unfairness and that as a result the Appellant was not able to attend the hearing or provide further evidence that would have been relevant to the factual basis of her claim. I observe that it appears to be the position that the appellant may not be able to give oral evidence. Even if that is the case, it does not necessarily mean that the appeal should be adjourned indefinitely but that the terms of the Joint Presidential Guidance should be taken into account and that a witness statement may stand in lieu of any oral evidence. In the alternative, a medical practitioner may be in the position to outline any measures or adjustments that can be made to enable the appellant to give oral evidence. Again, the Joint Presidential Guidance sets out what appropriate measures can be taken. Those issues are to be addressed in case management hearing as set out below.
16. For those reasons I therefore find that it is been demonstrated that there was a material error of law in the judge's decision.
17. I therefore set aside the decision of the judge in its entirety. I have taken into account paragraph 7.2 of the practice statements for the Immigration and Asylum Chamber of the First-tier Tribunal and the Upper Tribunal which recognises that it may not be possible for the Upper Tribunal shall proceed to remake the decision when it is satisfied that (a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunities that party's case to be put to and considered by the First-tier Tribunal; or (b) the nature or extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be remade is such that, having regard to the overriding objective 2, it is appropriate to remit the case of the First-tier Tribunal. Having exercised my discretion and by considering the practice statement, the case falls within (a) given that there was a procedural unfairness and also under (b) given that the court will be able to take into account any evidence submitted on behalf of the appellant and any witnesses and therefore I am satisfied that the appropriate course is to remit the case to the First-tier Tribunal for a fresh hearing. Both parties were in agreement that the correct course to adopt was to remit the appeal to the First-tier Tribunal who would have the opportunity to consider the evidence and to make an assessment of the evidence as a whole and findings of fact.
18. In terms of the hearing, I make the following directions:
1. There shall be a case management hearing on the first available date before a FtTJ.
2. No later than 3 days before that CMHR the Appellant's representatives shall provide an expert medical report dealing with the appellant's history and diagnosis and whether there are any adjustments that can be made by the Tribunal in order for her to give evidence and/or to confirm whether she is able to give oral evidence.
3. At the CMHR it will expected that the representatives will be able to address the issues set out in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 in which Sir Ernest Ryder, Senior President, referred to the Joint Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant ("the guidance note") and also the Practice Direction, First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses.

Decision:
The decision of the First-tier Tribunal did involve the making of an error on a point of law and the appeal is allowed; the decision of the First-tier Tribunal shall be set aside and remitted to the First-tier Tribunal for a further hearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 14 October 2019

Upper Tribunal Judge Reeds