Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08178/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 3 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

Fahad Jamal KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a citizen of Pakistan born on 5 January 1981. The appellant appealed to the First-tier Tribunal against a decision of the respondent dated 9 February 2015 to refuse to vary the appellant's leave and to give directions for removal under Section 47 of the Immigration Asylum and Nationality Act 2006. In a decision dated 20 April 2016 Judge of the First-tier Tribunal A M Black dismissed the appellant's appeal on immigration and human rights grounds.
Upper Tribunal
2. The appellant appealed on the grounds that he had difficulties with his previous agents. In the course of his appeal before the First-tier Tribunal the appeal was adjourned. The appellant contended that he had continued to wait for a hearing date but then received the decision and reasons promulgated on 4 May 2016 dismissing his appeal without his attendance. The appellant indicated that he approached his previous agents who told him that they had received a hearing date and had lodged documents on 22 April 2016 to which the appellant stated, through his new agents, that he had no knowledge nor had given approval for. The appellant claimed that his previous agents had failed to him a reasonable explanation as to why he was not informed by them about his hearing on 20 April 2016. The grounds for permission to appeal from the appellant's new representatives, Burney Legal Solicitors, contended that they had written to the previous agents without response.
3. Permission to appeal to the Upper Tribunal was granted on the basis that it was an arguable error of law that had the appellant been able to attend, the evidence he could have lodged, together with his oral evidence, may have made a material difference to the outcome or to the fairness of the proceedings.
Hearing
4. There was no appearance by or on behalf of the appellant. I considered the Tribunal Procedure (Upper Tribunal) Rules 2008, including Rule 2 the overriding objective and Rule 38, hearing in a party's absence which provides as follows:
"If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal -
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing."
5. I considered the notice of hearing which was issued to the appellant's solicitors Burney Legal Solicitors on 18 November 2016 and to the appellant at 127 Upney Lane. It was noted in the Tribunal file on 9 November that the respondent confirmed to the Tribunal that the appellant was no longer detained and that his address was now 127 Upney Lane, Barking, Essex IG11 9LE.
6. I was satisfied therefore that the notice of the Upper Tribunal hearing had been properly served on the appellant and his representatives and/or that reasonable steps had been taken to so notify them. There was no adequate explanation for the non-appearance of either the appellant or his current representatives and I was satisfied that it was in the interests of justice to proceed with the hearing.
Decision on Error of Law
7. For the reasons set out below I am not satisfied that there is any material error of law in the decision of the First-tier Tribunal.
8. The grounds for permission to appeal from Burney Legal, the appellant's current representatives, are not without difficulties. The grounds indicate that the First-tier Tribunal provided the appellant with a hearing date for 8 September 2015. The Tribunal file contains a notice of hearing dated 10 April 2015 confirming a substantive hearing on Tuesday 8 September 2015 and this was issued to the appellant care of his then representatives, Lawgate Solicitors.
9. The grounds for permission to appeal indicated that the appellant's appeal was thereafter adjourned and "the Tribunal communicate as much to him by way of directions dated 5 May 2015. A copy was also sent to his previous legal representatives". As indicated by the grounds for permission there is indeed a notice of adjourned hearing dated 6 (rather than 5) May 2015 to the appellant at 42 York Road, Leyton, London, E10 5QG and also copied to Lawgate Solicitors confirming that his hearing would be heard on Monday 16 November 2015. That hearing was then adjourned again by notice of adjourned hearing issued on 9 November 2015. A further notice of adjourned hearing was issued on 26 November 2015, again to the appellant at his Leyton address in London also issued to Lawgate Solicitors confirming that his appeal would be heard on Wednesday 20 April 2016. The next correspondence from the Tribunal, following no appearance from either the appellant or his representatives, was issued on 4 May 2016 again to the appellant at his Leyton address in London and also to Lawgate Solicitors with a copy of a decision of the First-tier Tribunal dismissing his appeal.
10. However the grounds for permission state that the appellant continued to wait for a hearing date and go on to indicate that "without receiving any prior knowledge of a replacement hearing date from either the Tribunal or his previous legal representative, he instead received a determination promulgated on 4 May 2016 dismissing his appeal." The grounds for permission go on to state that:
"The appellant was somewhat surprised to have received such a decision and approached his previous legal representatives who then rather negligently informed him that they had received a hearing date and that they had filed a bundle of documents to the Tribunal without his prior knowledge, instructions and approval".
11. The fundamental problem with those grounds is that the grounds acknowledge that the Tribunal communicated to the appellant by way of directions dated 5 May 2015, with a copy also sent to his legal representatives, that the hearing date for 8 September 2015 was adjourned. As indicated in the timeline that I have set out above this adjournment was communicated to the appellant at his Leyton, London address which continued to be his address through the adjournment notices which were issued, and which I have recorded above, until the promulgation of the First-tier Tribunal's decision on 4 May 2016. There has been no change in the address either notified by the appellant or used by the Tribunal. The grounds for permission acknowledge that the appellant received both the first communication adjourning his 8 September 2015 hearing (dated May 2015) and that he received the promulgation of the decision dismissing his appeal promulgated on 4 May 2016. If that is the case I do not accept that he would not also have received the communications to the same address, on 26 November 2015, with the new date for his appeal on 20 April 2016. I do not therefore accept the contention, by Burney Legal, that the appellant had no prior knowledge of his appeal date.
12. Therefore there can be no merit in the appellant's grounds of appeal which are predicated on, at best, a mistake on the part of Burney Legal that the appellant did not receive the notice of hearing which I am satisfied was properly issued.
13. In addition, and connected to that issue, the appellant and his current representative sought to apportion blame to his previous representatives Lawgate Solicitors. However, relying on BT Nepal 00311 UKUT [2004] the Upper Tribunal held that:
"If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representatives, and the Tribunal must be shown either the response or correspondence indicating that there has been no response".
14. Although the appellant's current representatives, at paragraph 10 of the grounds for permission, indicated that they wrote to the previous representatives on 4 October 2016 and set out the information that they requested, no copy of that correspondence has been provided. In addition although it was stated that the appellant's previous legal representatives confirmed verbally that they had no other documents and would not be responding to their letter of 4 October 2016, again there was no information or evidence that might confirm that allegation for example an attendance note from the legal representative who took such a call.
15. In the absence of such information I am not satisfied that there is adequate evidence that the allegations have been put to the former representative. Therefore it is not possible to make a finding of fact based on such allegations. This, combined with the difficulties in the appellant's claimed timeline (as set out above) which is inconsistent with the Tribunal records which show that the appellant was clearly issued with notices of hearing, indicates that there was no issue of unfairness in this case.
16. Analogous with the facts in BT the judge in the case before me was faced with a case with no appearance from the appellant and the respondent consented to the hearing proceeding without representation. The judge properly directed herself in line with Rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and was satisfied that it was in the interests of justice to proceed with the hearing. In those circumstances the judge was correct to, in effect, conclude that there was no substantive challenge to the conclusions or arguments of the Secretary of State in the refusal letter.
17. Although I accept that, in addition to the issue of non-attendance of the appellant, there was an issue of a claimed bundle of documents that the previous representatives indicated that they had submitted although none were received by the Tribunal, again there was no adequate evidence that the allegations in relation to the non-service of these documents (and the adequacy of them) was put to the former representatives and that they had an opportunity to respond. As indicated above this also does not provide an adequate explanation for the appellant's own failure to attend the hearing before the First-tier Tribunal where at the very least he could have sought a further adjournment if he was at that stage not satisfied with his legal representation.
18. In considering my approach I have applied the relevant jurisprudence in relation to fairness in the Tribunal including Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC) and that I must consider not whether it was reasonable for the judge not to adjourn but whether it was fair. In all the circumstances, in the light of the lack of adequate explanation from the appellant either in the grounds of appeal which as noted above are inconsistent with the Tribunal record, nor before the Upper Tribunal where there was no appearance from either the appellant or his new representative, I am satisfied that it has not been shown that the appellant appearing together with any evidence he could have lodged (and again no adequate evidence has been produced as to what that information might have been) would have made a material difference to the outcome or to the fairness of the proceedings.
Conclusion
19. The decision of the First-tier Tribunal does not disclose an error of law and shall stand. The appeal by the appellant is dismissed.

No anonymity direction was sought or is appropriate in this case.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson