Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05542/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 29 November 2017
On 11 January 2018

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

AJWINDER SINGH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Ahmed, Counsel instructed by 12 Bridge Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer
DECISION AND REASONS
1. There is only one point in this appeal; it is whether the First-tier Tribunal was entitled in law to refuse to adjourn a hearing on 31 January 2017 for the reasons given.
2. This case has an unfortunately long history. The appellant claims to have lived in the United Kingdom without permission for a long time and he made an application to remain based on fourteen years' unlawful residence, although by the time the Secretary of State was able to decide the application the requirements of the Rules had been changed so that twenty years' unlawful residence was normally necessary for a person to be allowed to remain.
3. The appeal has been allowed previously by the First-tier Tribunal but the decision was overturned by the Upper Tribunal which directed that there be a further hearing in the First-tier Tribunal. That hearing was listed for 31 January 2017 at Birmingham. The appellant did not appear. The appellant has never previously failed to attend or otherwise acted in a way that shows any kind of irresponsibility towards the Tribunal or the decision-making process. Further, the hearing on 31 January 2017 did not have the hallmarks of someone who had lost interest. There were witness statements, there were witnesses in attendance to support the appellant and Counsel had been instructed and appeared to do his job. It therefore might have been thought rather surprising that the appellant did not appear. He sent an explanation. One of his intended witnesses said that he had taken the appellant to hospital because he was poorly and was complaining of a bad back. That witness could not be expected to say any more. He was not in a position to give opinions on the cause of the apparent pain or the extent of any disabling consequences but the fact that he took him to hospital was noted.
4. Nevertheless, the judge was not impressed and refused the application to adjourn but put the matter back in the list. It was her view that the appellant lived close enough to the hearing room to come later in the day and she gave time for that to happen. When the case was next mentioned there had was some communication from a medical practitioner. It was in the form of a standard "Statement of Fitness for Work" for the purposes of social security or sick pay. It was dated 31 January 2017, being the date of hearing, and reported that the appellant had "acute back pain with sciatica" but this was in the context of a statement that the appellant was not fit to work. There is a note beneath that that records that the appellant "was seen in A/E this morning when RX with Naproxen. Pain allegedly severe. Zapain added".
5. This is evidence that the appellant had satisfied a medical practitioner that, because of back pain for which apparently well-known anti-inflammatory and painkilling drugs had been prescribed, he was not fit to work. The appellant works as a builder. The First-tier Tribunal Judge was perfectly entitled to note, as she did, that evidence that a person is not fit to work as a builder is not evidence that a person is not fit to attend a hearing.
6. Counsel before the First-tier Tribunal (not Mr Ahmed) repeated the application for an adjournment, which was again refused, and suggested that if the application had to be refused he should at least be allowed to call the available evidence and the appeal be then adjourned part heard to a further occasion when the appellant might be better. That, if I may say so, seems an extremely sensible approach by Counsel who was doing the best that he could for the appellant but it did not appeal to the judge. The judge took the view that the appellant had had proper notice of the hearing, which he clearly had, that he had not provided satisfactory evidence of unfitness to attend, which is clearly a permissible interpretation of the medical evidence, and ordered that the hearing should carry on.
7. I remind myself very firmly that I am not here to decide what I would have done but whether the decision of the judge was unlawful. She reminded herself, correctly, of the decision of this Tribunal in Nwaigwe (adjournment: fairness) v SSHD [2014] UKUT 00418 (IAC). The point is that decisions on adjournment applications are not exercises in judicial machismo or showing off but in deciding if it is necessary to adjourn to dispose fairly of the appeal. The need to be fair encompasses more than the convenience of the parties.
8. Mr Ahmed has made much of the appellant's apparently responsible attitude on earlier occasions but that does nothing to change the essential fact that there was no medical evidence before the Tribunal that justified the conclusion that the appellant was not fit to attend and give evidence. The judge was perfectly entitled on the evidence she had got to be dissatisfied with the explanation. Once she was dissatisfied with the explanation she then conducted the hearing in a way which was consistent with her dissatisfaction. She measured the appellant's evidence in the form of his witness statements with the other evidence that was heard, and for reasons that were entirely sensible was unpersuaded by that evidence and ruled against the appellant.
9. Whilst I have appreciated Mr Ahmed's energetic efforts, and he has certainly given me cause to think, I am not persuaded that there was anything unlawful in the judge's approach or conclusions. It follows therefore that I dismiss this appeal.

Signed

Jonathan Perkins, Upper Tribunal Judge

Dated: 9 January 2018