Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/17727/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 July 2019
On 23rd July 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

R S
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Coleman, Counsel
For the Respondent: Ms Jones, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of India born on 1 August 1962. He appealed against the decision of the respondent on 29 June 2018 to refuse his human rights claim. His appeal came before Judge of the First-tier Tribunal Lloyd-Lawrie ("the FTTJ") who, in a decision promulgated on 29 March 2019, dismissed his appeal on human rights grounds
2. Permission to appeal was granted by First-tier Tribunal Judge Bird in the following terms:
"?
2. The appellant seeks permission to appeal against this decision on the grounds that in failing to adjourn the appeal [sic] despite there being a letter from the appellant's GP saying that he was unfit to attend the hearing, the judge acted unfairly in proceeding in the appellant's absence.
3. The judge refers to this letter indirectly at paragraph 19 and paragraph 7. It is also referred to by the Presenting Officer in submissions made by her which are set out at paragraph 9 of the decision. It is arguable that in failing to note that the GP had indicated that the appellant was unfit to attend the hearing and considering whether it would be appropriate to adjourn the matter for further investigation the judge has failed to allow the appellant a fair opportunity to present his appeal.
4. This amounts to procedural unfairness and therefore is an arguable error of law."
3. Hence the matter came before me.
4. Mr Coleman, for the appellant, submitted that it had been procedurally unfair for the FTTJ to proceed with the hearing: the evidence identified a request by the appellant, through his solicitors, for a hearing on the papers, on medical grounds, and that did not occur. I pointed out to Mr Coleman that a notice of hearing had been issued on 18 March to the parties by email to the effect that the Tribunal's caseworker had decided that, notwithstanding the appellant's request for a hearing on the papers, "the Tribunal had decided in accordance with Rule 4(3)(g) that the apeeal [sic] will be listed as an oral hearing to allow the Respondent to make submissions as appropriate". Mr Coleman had not been made aware of this notice of hearing. He submitted that, as the decision to hold an oral hearing had been made by a caseworker, the appellant should have been given the opportunity for the decision to be considered afresh. He said that the failure of the tribunal to proceed to hear the appeal on the papers was an error of law. He noted the Home Office Presenting Officer ("HOPO") had opposed the hearing being on the papers but this was a unilateral position and the appellant had not been represented or in attendance to deal with the respondent's opposition. He submitted that the FTTJ had made the decision to proceed with the oral hearing on the basis of one view only and this was procedurally unfair. Furthermore, the FTTJ had made adverse credibility findings; the hearing had not been "a level playing field", the HOPO having attacked the appellant's credibility in submissions.
5. Mr Coleman referred to the guidance in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), submitting that reasonableness was not the test; arguably the FTTJ did not engage with the appellant's application. He submitted that the FTTJ should have engaged with the medical evidence and the reason the appellant wanted the matter to proceed on the papers.
6. Ms Jones, for the respondent, submitted there was no procedural unfairness to the appellant. His solicitors had notified the tribunal by letter on 13 March that he would not be attending the hearing; he was in poor health and requested a hearing on the papers. It had been clear he would not attend. Insofar as any potential error of law was concerned, the issue was whether the hearing should have been adjourned. The appellant did not seek an adjournment. The appellant's solicitors had responded to the notice of hearing issued on 18 March by letter dated 20 March confirming he would not attend and seeking a hearing on the papers. Ms Jones submitted the respondent was entitled to object to that request. The appellant knew what was in dispute; the HOPO had merely adopted the reasons for refusal in her submissions.
7. Mr Coleman submitted, in reply, that once the FTTJ had made a final decision to hear the oral submissions of the HOPO, he should have given the appellant the opportunity to be represented or make oral submissions. That was the point, he submitted, where consideration of an adjournment was required. Having made the decision to hold an oral hearing, it was incumbent on the FTTJ to adjourn the hearing to allow the appellant's solicitors to respond. It was not in doubt that the appellant could not attend. The failure of the FTTJ to adjourn for that purpose was, he submitted a procedural error of law.
Discussion
8. The primary ground of appeal is the alleged failure of the FTTJ to adjourn the hearing "in the interests of fairness and justice". Indeed this was the sole issue addressed in Mr Coleman's oral submissions. The background to this assertion is relevant.
9. In his grounds of appeal to the First-tier Tribunal the appellant requested an oral hearing. However, in his statement prepared for the hearing, dated 11 March 2019, he said "My physical and mental health is at a critically low level there [sic] I am not in good condition to attend court hence I request that the matter be heard on paper. A letter for [sic] my GP is attached".
10. The appellant's solicitors sent the First-tier Tribunal, under cover of their letter of 13 March 2019, an appeal bundle which the appellant "wishes to rely on". They also stated "Note that our client has instructed us to request that the matter be listed for a paper hearing instead as he is at present suffering of poor health". Apparently in response to this letter, which is stamped as having been received by the Tribunal on 15 March 2019, the First-tier Tribunal issued the following notice on 18 March 2019:
"The appellant has requested the appeal be heard on the papers only.
The Tribunal has decided in accordance with Rule 4(3)(g) that the appeal will be listed as an oral hearing to allow the Respondent to make submissions as appropriate.
This decision is made by a Tribunal Caseworker in exercise of a specified power granted by the Senior President of Tribunals under rules 3(1) and (2) of the Tribunals (First-tier Tribunal) (Immigration and Asylum Chamber) rules 2014. You may within 14 days of the date of this decision apply in writing to the Tribunal for the decision to be considered afresh by a judge under rule 3(4)."
11. This notice was served on the appellant's solicitors and the respondent by email during the morning of 18 March 2019 under the heading "Notice in Response to Request for Hearing on the Papers". On 20 March 2019 the appellant's solicitors wrote to the tribunal by fax and post in the following terms:
"? We write further to the Notice of 18/3/2019 and submit herein a further letter, provided by our client, from our client's GP confirming that he cannot attend court for the upcoming hearing.
We have advised the client thoroughly of the importance of making oral submission [sic] and that it is in his bests interest to attend court however he has insisted that he is unable to attend. The matter has been explained in its entirety and the client confirmed that he understood but wishes to proceed as instructed regardless.
Therefore at this juncture we again request court to consider listing the matter as an oral [sic] hearing inn [sic] light of the evidence enclosed."
12. The Tribunal's copy of the letter from the appellant's solicitors is endorsed with a handwritten note which appears to have been made by a member of staff at the Tribunal: "Representatives confirm meant "paper" above. Also confirm appellant + representative not attending. Therefore interpreter cancelled."
13. Enclosed with the solicitors' correspondence was a letter from the appellant's GP dated 19 March 2019 to the effect that the appellant had "documented osteoarthritis. He has been having severe back and knee pain for a few days despite medication. In my clinical opinion, he will not be medically fit to attend his interview with you on 21 March 2019." A further letter was sent by the appellant's solicitors by special delivery on 20 March 2019 to the First-tier Tribunal enclosing "the original GP's letter for your consideration".
14. It is significant that the appellant made no formal request for an adjournment of the hearing, merely for the hearing to proceed on the papers. It is not clear to me why the appellant, believing himself unable to attend the hearing on health grounds, wanted the hearing to proceed on the papers. This is a process which might be considered disadvantageous to the appellant.
15. The decision to refuse the appellant's application for a paper hearing was made by a Tribunal caseworker pursuant to rule 3 which provides as follows under the heading "delegation to staff":
"3.- (1) Anything of a formal or administrative nature which is required or permitted to be done by the Tribunal under these Rules may be done by a member of the Tribunal's staff.
(2) Staff appointed by the Lord Chancellor may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done by the Tribunal.
(3) The approval referred to at paragraph (2) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.
(4) Within 14 days after the date on which the Tribunal sends notice of a decision made by a member of staff under paragraph (2) to a party, that party may apply in writing to the Tribunal for that decision to be considered afresh by a judge.
16. There is no suggestion by either party that the decision of the caseworker was outwith the Rules.
17. While the main ground of appeal before me is that the FTTJ erred in law in failing to adjourn the hearing as a result of the absence of the appellant, this is but part of the whole picture. It would or should have been clear to the FTTJ that the appellant had requested a paper hearing on grounds of ill health and that a Tribunal Caseworker had exercised case management powers and decided to reject that application. Rule 3(4) makes it clear that the appellant was entitled to apply in writing to the Tribunal for the decision to be considered afresh by a judge. While the appellant's solicitors did not, in terms, request that the decision was reviewed by a judge, they did, having been notified of the caseworker's decision, "again request court to consider listing the matter as a [paper] hearing" (albeit the solicitors had inadvertently referred to requesting an oral hearing). This was a request which complied with the spirit of Rule 3(4) albeit that Rule was not cited in the appellant's solicitors' letter. This request (as amended by the Tribunal staff to refer to a request for a paper hearing) was on the Tribunal file at the date of hearing. Thus the FTTJ was on notice of that request.
18. I was provided with a copy of the HOPO's minute relating to the hearing before the FTTJ. This refers to the appellant's absence, the appellant's request that the hearing be on the papers and the lack of a request for an adjournment. It also states: "I opposed it being heard on the papers and made submissions on the case based on the rfrl ?". There is no reference in this document to the FTTJ reviewing the decision of the caseworker although this could perhaps be inferred from the HOPO's opposition to the appeal being heard on the papers.
19. The FTTJ's record of proceedings is silent on the issue of review. Unlike the HOPO's minute, it refers only to the HOPO's substantive submissions. In the decision itself the FTTJ states merely that "Only the Presenting Officer attended the hearing". Thus there is no information or evidence as to what decision was taken, if any, by the FTTJ with regard to the appellant's renewed request for a paper hearing because of his ill health. If the FTTJ did review the caseworker's decision (as might be inferred from the HOPO's minute) there is no indication as to the reasons for maintaining it and rejecting the appellant's renewed application. In the circumstances, given the absence of judicial record, it cannot be reasonably inferred that the FTTJ addressed the appellant's application pursuant to Rule 3(4). Nor can it be inferred that the FTTJ considered afresh whether the hearing should proceed on the papers.
20. While the outcome of such a review might reasonably have been to continue with the oral hearing, the failure of the FTTJ to review the caseworker's decision is a procedural error amounting to an error of law. It was unfair to have failed to take into account the renewed request for a paper hearing and the appellant's reasons for making it. I accept the submission that, had the FTTJ reviewed and decided to maintain the decision to hold an oral hearing, he might have decided to adjourn the hearing to enable the appellant to attend. Thus the error is a material one.
21. The representatives agreed that if I found a material error of law, the matter should be remitted to the First-tier Tribunal for a fresh hearing. That is the appropriate course. It is open to the appellant to renew his request for a hearing on the papers. In the meantime, the appeal should be listed for an oral hearing, as originally requested by the appellant in the notice of appeal.
Decision
22. The making of the decision of the First-tier Tribunal involved a material error on a point of law. The FTTJ's decision is set aside.
23. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ Lloyd-Lawrie.
24. Given my references to the appellant's health condition as set out in the GP evidence, he is entitled to anonymity in these proceedings.

A M Black
Deputy Upper Tribunal Judge Dated: 17 July 2019

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 him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black
Deputy Upper Tribunal Judge Dated: 17 July 2019

DIRECTIONS

1. Any further documentary and/or witness evidence relied upon by either party is to be filed with the Tribunal and served upon the other party by no later than 28 days before the date of the hearing in the First Tier Tribunal.

2. If the appellant wishes to apply for a hearing on the papers, he is directed to make such an application to the First-tier Tribunal within 14 days of the date of these directions, sending a copy of his request to the respondent. The appellant is directed to explain his reasons for the request.

3. The appeal is listed at Taylor House with a time estimate of two hours to be heard at 10.00 am on ?????????.

4. A Punjabi interpreter is required.

A M Black
Deputy Upper Tribunal Judge Dated: 17 July 2019