Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-005250
First-tier Tribunal No: PA/52444/2021
IA/06950/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

JH (PAKISTAN)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Aslam, Counsel
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Heard at Field House on 2 March 2023

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant appeals on procedural fairness grounds from the decision of First-tier Tribunal Judge Beg promulgated on 5 July 2022 (“the Decision”). By the Decision, Judge Beg dismissed the appellant’s appeal on asylum, humanitarian protection and human rights grounds against the decision of the respondent to refuse to recognise him as a refugee on account of his claimed sexual orientation.
Relevant Background
2. The appellant is a national of Pakistan, whose date of birth is 24 December 1991. He first came to the United Kingdom on 1 October 2014 in possession of a student visa which was valid until 5 September 2017. On 4 September 2017, the appellant made an application for further leave to remain outside the Immigration Rules. The application was considered and refused by a notice of decision dated 20 April 2018. The appellant apparently elected for his appeal against this refusal to be heard on the papers, and his appeal was dismissed on the papers by the First-tier Tribunal on 13 July 2018.
3. On 25 July 2018 the appellant claimed asylum as being a member of a particular social group which faced persecution in Pakistan. The application was considered and refused by a notice of decision dated 7 May 2021. The respondent was not satisfied that the appellant was a gay man; and it was also not accepted that he had problems on this account from his family members or that he had participated in LGBTI activities and relationships in the UK.
4. The appellant’s appeal was conducted on CCD. The appellant’s legal representatives failed to respond to directions from the Tribunal in the period August to November 2021. Judge Bibi ordered the appellant to serve a paginated bundle by 21 March 2022, and this direction was also not complied with. As a result, the Tribunal adjourned the substantive hearing set down for 7 April 2022. Further directions were then issued for the appellant to provide a paginated bundle by 20 June 2022, with the substantive hearing being re-scheduled for 5 July 2022.
5. On 30 June 2022 the appellant sent an email to Taylor House requesting an adjournment of the hearing of his appeal, because he needed to change his lawyer as his current lawyer was not doing a proper job. So, he was looking for a suitable lawyer and he needed another hearing date.
6. On 1 July 2022 a Tribunal Caseworker replied to say that the appellant’s request for an adjournment had been placed before a Judge, but the Judge had refused to grant the adjournment because there was no explanation as to the steps he had taken regarding the delays and “precisely you are seeking a late change of representative”. The hearing would thus continue to take place as scheduled.
7. On the morning of 4 July 2022, the appellant replied that he would surely attend the hearing, but he did not have a link to the hearing. He asked the caseworker to help him “on this one”.
8. At 15:39 on the same day, the Tribunal responded as follows:
“Following consultation with a Judge and given the close proximity of the hearing, the hearing shall be going ahead tomorrow (5th July 2022). If you wish for the hearing to be adjourned, you must put this before the Judge at the beginning of the hearing tomorrow.
I will request that a link is issued to you so that you can access the remote hearing.”
9. At 07:50 am on 5 July 2022, the CVP joining notice that had been emailed to the appellant’s former solicitors on 30 June 2022 was forwarded to the appellant’s email address.
The Decision of the First-tier Tribunal
10. In the Decision, Judge Beg said:
“24. The appellant did not attend the appeal hearing. The notices of hearing dated 7 April 2022 and 6 June 2022 were properly served. In an email from the appellant to the Tribunal dated 30 June [2022], he stated that he had changed his representatives and was now looking for another representative. He requested an adjournment. He was informed that the request was made very late. His application was refused by the Duty Judge, and he was informed that he needed to make the application again before the Judge hearing his substantive appeal on 5 July 2022. The appellant’s representatives came off the record on 1 July 2022.
25. As the appellant failed to attend the hearing of the appeal, no further application was made to adjourn the substantive hearing. The appellant was well aware through a number of emails to the Tribunal that he was required to attend the hearing. I bear in mind that the appellant chose to tell his representatives very close to the substantive hearing date that he no longer wanted them to represent him. The appellant has had ample opportunity to find new representatives for months.
26. The appellant has not submitted any further documents in support of his appeal. I determine the appeal upon the available evidence in the file and in accordance with Rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum) Chamber Rules 2014. I am satisfied that notice of hearing has been served and it is in the interests of justice to proceed. Mr Ridgeway on behalf of the respondent did not make any further submissions other than to rely upon [the] refusal letter dated 7 May 2021.”
11. Judge Beg went on to give reasons for dismissing the appeal on all grounds raised.
The Application for Permission to Appeal
12. The application for permission to appeal was settled by the appellant’s new legal representatives, Westbrook Law Ltd, whom the appellant instructed on 27 July 2022. As the appellant was seeking to appeal out-of-time, the application for permission to appeal was coupled with an application for an extension of time.
13. They said that on 5 July 2022 the appellant joined the hearing by clicking the link. There was nobody other than him throughout that link or process. He waited there for several minutes. But he became panicked as he could not see anyone there. He did not know what to do. So, he waited and after several minutes he left the link. But he emailed the Tribunal on 8 July 2022 informing them of the situation. The Tribunal did not reply to his email of 8 July 2022 and he was still waiting for their response.
14. They submitted that there was clear evidence that the appellant had been in communication with the Tribunal throughout, and that he wanted to attend the hearing. It was a matter of a system glitch or an administrative issue that the appellant was not able to attend the hearing. This was an asylum claim and his life was in danger on return due to his sexuality. That was why it was crucial that he should have been given a fair opportunity to present his case. He was not able to attend the hearing due to a system fault. The appellant had now instructed a lawyer who could now support the appellant to prepare his case. The appellant could submit his appeal bundle with witness statements and other supporting documents. The respondent could review his case and cross-examine him, as credibility was a factor here.
The Reasons for the Grant of Permission of Appeal
15. The combined application for extension of time and for permission to appeal was allowed by Judge Adio. In his statement of reasons, Judge Adio noted that, as part of the application for an extension of time to lodge the application for permission to appeal, the appellant had attached some Whatsapp messages showing his attempts to call the Tribunal on 24 August 2022, as well as on 30 June 2022. He had also uploaded a chain of emails from 1 July to 31 August showing contact and communication with the Tribunal. In one email dated 31 August 2022, he included information that “he was there but could not access or could not reach where he was supposed to.” Judge Adio said that he interpreted this to mean ‘joining the CVP link’. Judge Adio continued:
“The findings of the Judge indicate that the Applicant had failed to attend the hearing and no further application was made to adjourn the substantive hearing. Bearing in mind the Applicant stated that he joined that link on 5 July 2022, I am willing to give the Applicant the benefit of doubt that he attempted to attend the hearing. The Judge does not state in her decision that there were any attempts by the court clerk to try and phone the Applicant to ensure that he had joined the link bearing in mind it is known that his representatives were no longer representing him following the Applicant withdrawing instructions from his previous lawyers. Due to the circumstances of the hearing and the fact that the Applicant was intending to attend his hearing and deal with credibility issues, the fact that a bundle has not been submitted would not have prevented the Applicant from answering questions put to him or making submissions on the respondent’s refusal letter or submission. In the circumstances I find that there is an error of law in proceeding with the hearing in view of the explanation given by the Applicant. Time to extend the application for permission to appeal is granted and permission is granted on the application made.”
The Respondent’s Reasons for Opposing the Appeal
16. In his skeleton argument dated 1 March 2023, Mr Melvin gave the respondent’s reasons for opposing the appeal. The Tribunal had issued direction after direction for the appellant to engage with the appeal process, which he had failed to do. In the absence of any formal complaint being made by the appellant against his former representatives, it could safely be assumed that the fault lay with the appellant for non-engagement with the process. It was clear from the appellant’s paper hearing in 2018 that this appellant had no intention to appear. The appellant chose to tell his representatives that he no longer wanted them to represent him very close to the substantive hearing and he failed to instruct new lawyers until three weeks afterwards.
17. As there was no suggestion that the appellant was suffering from any medical issues, his actions throughout the asylum process were close to making a mockery of that process. There was no indication from the extension of time application, nor in the grounds of appeal, that the appellant had any witnesses who also tried to attend the hearing remotely, and there was no indication that the appellant was intending to rely on any other evidence, either from Pakistan or the UK, to bolster his claim.
The Hearing Before Us
18. At the hearing before us to determine whether an error of law was made out, Mr Aslam acknowledged that we were not bound by the facts found, or the views expressed, by Judge Adio in granting permission to appeal. Mr Aslam also acknowledged the appellant’s failure to contact the Tribunal until 8 July 2022 was unexplained, and he confirmed that he was not contending that in every case it would be incumbent upon the Judge to make further enquiries before deciding to proceed with a hearing of an appeal in the appellant’s absence.
19. However, he submitted that on the particular facts of this case, Judge Beg had erred in law in not giving the appellant the benefit of the doubt, as Judge Adio had done when granting permission to appeal.
20. Mr Melvin relied on his skeleton argument opposing the appeal. He added that no evidence had been produced to show that the appellant did not have a telephone number to call in the event that he was experiencing problems in joining the hearing. There was also no specific evidence (beyond mere assertion) that the appellant had experienced any problems joining the hearing.
21. In reply, Mr Aslam adhered to the position that he had taken hitherto, which was that, as Judge Beg would have known, technical issues often arise in CVP hearings, and so the Judge should have directed the Court Clerk to make enquiries to establish whether this was the reason for the appellant not joining. Although the appellant had not filed an appellant’s bundle of documents, this would not have precluded him being cross-examined on his asylum claim.
Discussion and Conclusions
22. The issue before us is whether the appellant has been deprived of a fair hearing in the First-tier Tribunal of his appeal against the refusal of his protection claim. The resolution of this issue turns on the question of whether Judge Beg acted unfairly in proceeding to hear the appeal in the appellant’s absence without first asking her Court Clerk to contact the appellant to see if the reason for his non-attendance was that he was experiencing technical difficulties in joining the hearing.
23. In seeking to establish unfairness, the appellant is not restricted to the information and evidence that was before Judge Beg. He can also rely on subsequent evidence. However, we do not consider that the subsequent evidence assists the appellant in making good his case. The appellant did not attempt to contact the Tribunal on the day of the hearing in order to raise a concern about his professed inability to participate in it. It was not until three days later that the appellant emailed the Tribunal as follows:
“Hi there
On my hearing date 5th of July, I was there but I couldn’t access or I couldn’t reach where I was supposed to but I have arranged an appointment with a new lawyer its on Tuesday and hopefully they will write you same to inform court that who my new legal representor is.”
24. The CVP joining notice that the appellant was sent contained a telephone number at Taylor House for the appellant to call in the event that he encountered any technical issues when attempting to join the hearing. Accordingly, on the scenario that was first intimated by the appellant in his email of 8 July 2022 and on which he elaborated in his email of 31 August 2022, the obvious course for the appellant to have taken on the day was for him to ring the telephone number on the CVP joining notice.
25. While we accept that technical problems with CVP hearings occasionally arise, we do not consider that this gives rise to a general obligation to make further enquiries as to why the litigant in person has not joined the hearing, in circumstances where the CVP joining notice has clearly been sent to the litigant and it is known that the litigant can understand English. Both these conditions were met in this case. Precisely because the CVP joining notice contained a telephone number to call in the event of there being a difficulty in joining the remote hearing, it was reasonable for Judge Beg to assume that the appellant’s absence was not explained by him trying to join the hearing, but being unable to do so due to a glitch in the system.
26. In granting permission, Judge Adio was persuaded by the argument that the appellant had shown by the production of his email communications with the Tribunal that he had a genuine intention to attend the hearing, and therefore Judge Beg should have inferred that the appellant had been prevented from attending due to a glitch in the system. But the evidence and information that was before the Judge reasonably lent itself to a contrary interpretation.
27. There was a history of non-compliance on the part of the appellant in progressing his appeal. Although he impliedly blamed his representatives for this non-compliance when seeking an adjournment, he did not explain why he had left it until five days before the re-scheduled hearing to withdraw his instructions from them. Moreover, having failed to obtain an adjournment of the re-scheduled hearing for the reasons given by the Duty Judge, the appellant was facing the forthcoming hearing as a litigant in person without any supporting documentary evidence having been filed, without any witnesses having been lined up, and without having offered a satisfactory explanation for his complete failure hitherto to progress his appeal. Therefore, the appellant had a strong incentive not to make an appearance at the hearing, but instead to try and get it adjourned retrospectively.
28. The fact that the appellant delayed supplying an excuse for his non-appearance until three days after the event, and the fact that he coupled this excuse with a statement that he had secured an appointment with a new lawyer to represent him in his appeal, serves to undermine, rather than support, the case that Judge Beg should have given the appellant the benefit of the doubt as to the reason for his non-appearance.
29. As Mr Aslam acknowledged, Judge Adio exceeded his jurisdiction in finding as a fact that the appellant was intending to attend the hearing to deal with credibility issues, and holding definitively that there was an error of law in Judge Beg proceeding with the hearing, in view of the explanation given by the appellant in subsequent emails.
30. We consider that it was open to the Judge to proceed with the hearing of the asylum appeal in the appellant’s absence for the reasons which she gave. Neither by reference to the information and material that was before the Judge, nor by reference to the additional post-hearing material that is available to us, has the appellant made out a case that he has been deprived of a fair hearing of his appeal in the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal dismissing the appellant’s appeal did not involve the making of an error of Law. Accordingly, the decision of the First-tier Tribunal stands, and the appellant’s appeal to the Upper Tribunal is dismissed.
Anonymity
We continue the anonymity order made by the First-tier Tribunal

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
16 March 2023