Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07693/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 9 September 2016
On 16 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

Amrutben [T]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Anglo-Thai Legal
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant challenges the decision of FtT Judge Row to consider her appeal even though she was unable to attend the hearing. The appellant relies on other grounds but in essence her challenge is whether there was a procedural error that amounts to an error of law.
2. The appellant had asked the First-tier Tribunal to adjourn because a psychiatrist's report had been commissioned and was awaited. The appellant had been examined by a psychiatrist but the report had not been received by the date of hearing. Neither the appellant nor her five witnesses attended the hearing. The appellant indicated she was too ill to attend.
3. It is evident from Judge Row's decision and reasons statement that he considered whether an adjournment should have been granted. Mr Mills informed me that his file notes showed the judge spent over an hour discussing and considering the adjournment request.
4. It is clear from what Judge Row records and from the time taken that this was not a situation where the judge only paid passing attention to the request. In other words, it is not possible for anyone to conclude that Judge Row was placing administrative efficiency above the interests of justice.
5. Therefore, the question for me is whether the decision itself not to adjourn was correct in law at the time it was taken.
6. The first point I must note is that the content of the psychiatrist's report is irrelevant to my consideration. The fact the report is now available adds nothing other than to confirm it had been commissioned and would be provided. But those facts were evident through other documents that were available at the date of hearing.
7. The second point I mention is that Judge Row considered a range of relevant factors. He took account of the fact an earlier adjournment had been refused because the relevance of a psychiatrist's report had not been identified and there had been plenty of time to obtain such a report. To this extent the late commissioning of the report and the speculative nature of why a report was needed appeared to be an attempt to delay the proceedings. Judge Row made further enquiries about these matters but Mr Khan (who appeared in the FtT) had been unable to shed any light on them.
8. Judge Row went on to look at the application to adjourn in the context of the other evidence provided and concluded nothing indicated a sufficient reason to adjourn. The failure of the appellant and her witnesses was inadequately explained and was therefore potentially an attempt to force an adjournment.
9. In these circumstances the decision to refuse would appear to be a reasonable decision and therefore to be sustainable.
10. But there is a third issue. Judge Row needed to know the evidential basis as to why a psychiatrist's report had been commissioned. Mr Khan was unable to give him a reason and Judge Row relied on the lack of representation and did not examine the evidence provided. It is natural for a judge to proceed in this way because it would be reasonable to assume that Mr Khan had acted appropriately.
11. In making this assumption it would appear Judge Row overlooked the fact the appellant had claimed in the statement she submitted to the Home Office with her application that past events meant she suffered from and continued to suffer from depression. It was reasonable for evidence about the severity of that mental illness to be obtained. Mr Khan should have brought that to the judge's attention and did not do so. It is clear that Mr Khan failed to act in his client's best interest and failed to cooperate with the judge. But those failures cannot excuse the judge from not noticing it himself, particularly since his enquiries as to why a psychiatrist's report was sought were fundamental to his decision whether to adjourn.
12. Furthermore, when considering the merits of the appeal Judge Row did not record in the section of his decision and reasons statement sub-headed "medical issues" that the appellant claimed she was suffering from depression. This adds to my concerns that the appellants evidence on this matter had been overlooked.
13. Because of this finding I conclude an adjournment should have been granted and not to have done so amounts to a legal error. The error means the appeal must be remitted de novo.
14. Before I end I mention that in this case Mr Khan failed his client and the Tribunal. No doubt he will learn from such errors and will in future recognise that no one is entitled to an adjournment. I say that because the manner in which he approached the issue in both Tribunals has more than a whiff of trying to force an adjournment. There remains no reasonable explanation for the failure of the witnesses to attend the hearing. If there is a repeat of such behaviour, the First-tier a Tribunal may exercise its powers more strongly particularly in response to any unreasonable conduct.

Decision
The decision and reasons statement of Judge Row contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before a judge other than Judge Row.
No findings are preserved from the earlier decision and reasons statement.

Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal 16 September 2016