Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18840/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On July 31, 2019
On August 7, 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

mrs malika Chbani
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Heybroek, Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a Moroccan national who initially entered the United Kingdom as a visitor on March 17, 1990. She never left the United Kingdom according to her application and applications to extend her stay were refused on September 7, 1990 and thereafter on June 8, 1992, June 23, 2008 and November 25, 2014.
2. On March 6, 2018 the appellant lodged her current application on human rights grounds and this was refused by the respondent on July 3, 2018.
3. The appellant appealed this decision under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and her appeal came before a panel of Judges, namely Judges of the First-tier Tribunal Froom and Raymond and their decision promulgated on May 1, 2019 dismissed the appellant's appeal on human rights grounds.
4. The appellant appealed this decision and Judge of the First-tier Tribunal Hollingworth granted permission to appeal on June 10, 2019 finding it arguable that there may have been procedural unfairness by refusing to adjourn the hearing and that such a decision to refuse to adjourn may have impacted on the Judges' credibility assessment of both the appellant and her nephew.
SUBMISSIONS
5. Ms Heybroek adopted the grounds of appeal and argued that by failing to adjourn the case there had been procedural unfairness which impacted on the credibility assessment carried out by the Judges. The adjournment request arose out of the late service of a previous decision of Senior Immigration Judge Moulden. That hearing, before the Upper Tribunal in 2008, dealt with an error of law application, but the Judge upheld the original decision including the adverse credibility findings in respect of both the appellant and her nephew.
6. Ms Heybroek submitted that by failing to adjourn the matter the appellant had effectively been ambushed and had been prevented from calling different witnesses to substantiate her case and her claim that she had been resident in this country for the period claimed. She submitted the Judge failed to attach sufficient weight to the fact that she had changed her passport in 2005 and the correspondence from the Embassy in that regard, and little weight had been given to the fact that the nephew was a doctor and his evidence should have been given more weight in the circumstances.
7. Mr Lindsay opposed the application and submitted that it was clear from the Reasons for Refusal Letter that her length of time in this country was an issue from the outset and the decision letter made it clear that the respondent did not accept there had been continuous residence between 1998 and 2018.
8. The letter from the Embassy did not actually prove she was in the country but simply that her passport had been updated and he submitted that credibility was properly addressed by the Judges from paragraph 38 onwards of their decision. When the Upper Tribunal dealt with the matter in November 2008, they were only concerned with a small gap of between 2001 and 2007, whereas the decision letter made it clear that there was a lack of evidence covering the whole period. The appellant and her representatives were therefore on notice of what needed to be proved and they failed to produce sufficient evidence to address the respondent's concerns.
9. In finding that she had not been resident here, the Judges had taken into account the appellant's failure over a number of years to respond to requests to attend for a mammogram and they also attached weight to the fact that if lacked credibility she would not have engaged with a doctor over a six year period. Two witnesses had given evidence including the appellant, but their evidence had not displaced the concerns over the lack of documentation. The Judges had made a number of adverse findings and these were not affected by the decision not to adjourn the case.
10. In response Ms Heybroek submitted that the issue for this Tribunal was whether the Judges should have adjourned the case and she invited the Tribunal to find an error of law and to remit the matter back to the First-tier Tribunal for a fresh hearing.
FINDINGS
11. This is an appeal brought primarily on procedural unfairness grounds. In considering whether the Judges acted unfairly it is important to have regard to the Record of Proceedings and what is recorded within the determination.
12. Paragraphs 6 and 7 of the decision have not been challenged in the grounds of appeal and effectively they set out why there was a request for an adjournment and why the Judges chose not to adjourn. The challenge brought today is that the Judges were wrong to proceed and it is said that the failure to adjourn impacted on the credibility assessment.
13. Whilst it is always regrettable that evidence is served late, it is important to note that the Tribunal decision relied on was one that was issued and served on this appellant over 11 years ago. The appellant would therefore have been aware that she had previously been refused and the witness, her nephew, would also have been aware of this decision.
14. The refusal by the First-tier Tribunal did not simply relate to the findings in the Upper Tribunal decision but was based on their assessment of all the evidence. The reasons are extensive and are contained between paragraphs 38 and 60.
15. The Judges gave detailed reasons for finding why they were not satisfied that she had been residing in this country for the claimed period and they also gave detailed reasons why they did not find the witnesses credible.
16. They had before them other witness statements supporting the claim that the appellant had been here for the period claimed and whilst they attached less weight to those it is clear they did consider them as is evidenced by the decision.
17. The Judges expressed concern over the fact that she had not attended for a mammogram and a cervical smear over a period of six years and in the absence of any other attendance at a doctors this was significant.
18. Ms Heybroek submitted that the fact the Upper Tribunal decision had not been served undermined the First-tier Tribunal's decision in the sense that the Judges placed weight on that decision without giving the appellant an opportunity to challenge it.
19. The decision letter, reference page "3 of 6", makes it clear that the appellant had to provide documentary evidence showing continuous residence from 1998 to 2018 and the respondent was not satisfied with the evidence that was subsequently provided. The letter from the Embassy was a snapshot of one incident and did not assist the Judges with the question of whether she had continuously resided here during that period or had not been absent for a period of more than six months. Ultimately, how many witnesses the appellant called to support her case was a matter for her.
20. The reality is that the Judges did consider the request to adjourn, they did consider the interest of justice and concluded that it was open to them to proceed, especially as there were two live witnesses available to give evidence and ultimately their assessment of their evidence was crucial to the case. Their findings were open to them.
21. In the circumstances I do not find the decision to adjourn amounted to an error in law and consequently the second, but linked ground, that this impacted on the credibility assessment has no merit.
DECISION
22. I find no error of law and I uphold the original decision.
23. No anonymity direction is made.

Signed Date 2 August 2019

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

No fee award as I have dismissed the appeal.

Signed Date 2 August 2019

Deputy Upper Tribunal Judge Alis