Tribunal decisions

The decision

IAC-fH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12715/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 18 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE MAILER

Between

abdul malik awan
(anonymity direction not made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Iengar, Counsel
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant is a national of Pakistan born on 10 January 1985. On 6 September 2013 the appellant made a combined application for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant under the points-based system. The appellant was interviewed twice regarding his Tier 1 application, first on 21 November 2013 and then on 15 January 2015. His application was refused by way of a decision letter dated 13 March 2015.
2. An appeal was taken to the First-tier Tribunal on 23 March 2016 and was dismissed by a determination promulgated on 31 March 2016. The appellant thereafter appealed this decision and permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal on 9 September 2016 and later granted by the Upper Tribunal on 11 October 2016.
The Issue
3. The issue raised in this case was a very short one. The First-tier Tribunal was informed that the respondent had not, despite calls on her to do so, disclosed to the appellant the whole transcript of his first interview.
4. We were informed that this interview had lasted for some two hours. All that had been disclosed by the respondent with respect to this interview was a very short summary, running only to a few lines.
5. It appears that no motion was made, on behalf of the appellant, before the First-tier Tribunal to adjourn in order for a full transcript of the said interview to be made available. However, it was submitted to the First-tier Tribunal that in the whole circumstances no real reliance could be placed on the summary of the interview.
6. The case proceeded before the First-tier Tribunal. Despite the above submission it is clear from paragraphs 10 to 13, 22 and 43 of the First-tier Tribunal's determination that it placed significant, if not critical, reliance on the terms of the said summary in reaching its decision on the core issue in the case, namely: the credibility of the appellant.
7. In particular at paragraph 43 the First-tier Tribunal found as follows:-
"I agree with the respondent's reasons for refusing on the basis of what the appellant said in his credibility interviews. After considering those interviews fully the only sensible conclusion that the respondent could have reached is that the appellant had failed to satisfactorily establish that he was in a credible business."
8. Against that background the issue before us became this: did the appellant have a fair hearing before the First-tier Tribunal?
Submissions on Behalf of the Appellant
9. The submissions made on behalf of the appellant were in fairly short compass. First it was argued that the hearing before the First-tier Tribunal was unfair in the absence of the whole transcript of the interview being available in that:
(a) A summary could not be considered simply on its face, a true reflection of the answers given at the interview, and
(b) Having only been served a summary, the appellant could not adequately test the respondent's assertions, or properly reply to the respondent's findings based upon the interview.
10. In support of the above reliance was placed on the observations of the Upper Tribunal in Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC) at paragraph (iv) of the headnote where the following is said:
"However, the document enshrining the interviewer's comments ? must be disclosed as a matter of course. An appellant's right to a fair hearing dictates this course."
11. It was further argued on behalf of the appellant that the determination at paragraph 29 revealed a material error of fact. The First-tier Tribunal it was submitted at that part of the determination incorrectly stated that:
"This appeal hearing provided the appellant with a full opportunity to challenge the respondent's interview records. The appellant did not challenge them."
12. It was submitted that the appellant had not been afforded a full opportunity to challenge the respondent's interview records, because a full set was not provided to the appellant. The First-tier Tribunal had materially erred in fact by concluding that the appellant did not challenge the interview records. It was submitted that this was a material error as it incorrectly presumed that the appellant had been afforded the opportunity to properly challenge all of the evidence submitted against him.
Submissions on Behalf of the Respondent
13. The submission made by Mr Avery was a concise one: in the absence of the appellant having sought and been refused an adjournment on the basis of the failure to provide the whole transcript of the first interview the appellant's argument did not get off the ground. He further submitted that Miah could not be read across into the circumstances of this case given the different regulatory background of the two cases.
Discussion
14. Dealing first with Mr Avery's position that in the absence of an adjournment being sought at the First-tier Tribunal hearing the appeal must fail, we reject this argument. We believe that the best course in the circumstances of this case to have been followed by the appellant before the First-tier Tribunal would have been to seek an adjournment. However, the failure to do so does not in our view in any way diminish the criticisms of the determination made by Counsel for the appellant. We without difficulty hold that there is substantial merit in the position as advanced before us on behalf of the appellant.
15. We are satisfied that to decide, to a material extent, the core issue in the case on the basis of a summary of the first interview was to render the proceedings before the First-tier Tribunal unfair. To adopt this course is to first fail to consider, what may have been, other material evidence contained in the rest of the interview and secondly is to fail to allow the appellant to properly challenge, by reference to the whole terms of the interview, the assertions being made by the respondent based on the summary produced.
16. A hearing cannot be fair where one side (in this case the respondent) is allowed to "cherry-pick" the parts of an interview which it wishes to rely on and not let the other side see the rest of the interview to examine whether anything within that can materially assist them in rebutting such parts of the interview as relied on.
17. The observations in Miah on disclosure we believe set forth a general principle regarding disclosure which can be read across into the circumstances of the instant case, namely: any document relied on by the Secretary of State must be disclosed to an applicant.
Decision
18. For the above reasons we find that there has been a material error of law. We accordingly set aside the decision of the First-tier Tribunal. Given the basis upon which we are setting aside the said decision we remit the case to the First-tier Tribunal for a fresh hearing before a differently constituted First-tier Tribunal.
19. We make no anonymity direction.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal