Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/00922/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th June 2016
On 18th October 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

KANTHIAH RAM
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Allen, instructed by Jein Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. The Appellant is a citizen of the USA born on 29th October 1930. He appeals against the decision of First-tier Tribunal Judge Row, dated 9th November 2016, dismissing his appeal against the refusal of leave to remain on compassionate grounds.

2. Permission to appeal was granted by First-tier Tribunal Judge Colyer on 27th April 2016 on the following grounds that the refusal to grant an adjournment was arguably unfair and the judge failed to take into account relevant matters in his assessment of Article 8.

3. Ms Allen submitted that the Appellant was entitled to attend the hearing of his appeal and had been denied the opportunity to do so. The judge concluded that the Appellant and his witnesses were not credible. The Appellant was denied the opportunity to explain the discrepancies in the evidence in relation to where he was living in the USA. The judge found that it was in the interest of justice to proceed on the basis that there were other witnesses who could give evidence on the Appellant's behalf. The judge misapplied Rule 28 of the Tribunal Procedure Rules 2014. The judge proceeded in the Appellant's absence and rejected his account.

4. Having rejected the Appellant's evidence the judge did not accept that the Appellant would be living alone if he returned to the USA. This affected the judge's assessment of the medical evidence. Further, the judge failed to take into account the evidence of the social worker.

5. Mr Bramble submitted that the refusal of an adjournment was not procedurally unfair and there was no medical evidence that the Appellant was unable to attend. The judge was entitled to take into account that the matter had been adjourned before and to consider the future conduct of the appeal. The judge had taken into account all relevant evidence from the Appellant and his family and found against the Appellant. This did not amount to procedural unfairness.

6. I find that the judge's refusal to adjourn the hearing was unfair in the particular circumstances of this case. The Appellant had attended the previous hearing which was adjourned because of his failure to comply with directions. He was unable to attend this hearing because he was ill. Although he was elderly and frail, it did not follow that he could not attend in the future. I find that it was unfair of the judge to reject the Appellant's account without giving him the opportunity to give evidence and explain any discrepancies. The Appellant's evidence was consistent with the evidence of his eldest son in the USA and his son in the UK. The evidence of his daughter in law in the UK and other son in the USA was contrary to this account.

7. The judge's finding that the Appellant would not have to live alone in the USA was based on his rejection of the Appellant's account and it affected his assessment of the medical evidence and social worker. The refusal to grant an adjournment was material to the outcome of the appeal.

8. I have decided in accordance with paragraph 7.2 of the Practice Statements of 25th September 2012 that the decision dated 9th November 2015 should be set aside and the appeal remitted to the First-tier Tribunal.

DIRECTIONS

(i) The Tribunal is directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal at a hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judge Row.

(ii) I direct that the Appellant serve on the Respondent and the Tribunal not less than 14 days before the hearing any further evidence upon which they intend to rely.

(iii) No interpreter is required. Time estimate two hours.

J Frances
Signed Date 8th June 2016

Upper Tribunal Judge Frances