Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18796/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 19 December 2016

Before

THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

Between

o r s
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G Brown, Counsel, instructed by Owens Stevens Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Hodgkinson promulgated on 15 February 2016. There are grounds of appeal under Rules 33 and 21 which should be read together. The Secretary of State opposes the appeal and has lodged a Rule 24 response.

2. The appellant was unrepresented at the hearing before the First-tier Tribunal on 27 January 2016. He made a motion to adjourn the hearing so that he could be represented. This was opposed by the respondent and refused by the Immigration Judge. The first issue for me to decide is whether or not that refusal was procedurally unfair to the appellant.

3. The history of the case and the circumstances giving rise to the motion to adjourn together with the reasons for refusal are set out in detail at paragraphs 5 to 22. From some time in the latter quarter of 2014 the appellant had been represented by a firm of solicitors Owens Stevens, instructing Miss V Easty, Counsel, on a pro bono basis. There were a number of adjournments throughout the process at the instance of both the appellant and the respondent resulting in what are described as significant delays.

4. At the adjourned hearing on 30 September 2015 the date of 27 January 2016 had apparently been obtained for a new hearing. Judge Hodgkinson records that the date had been communicated to both parties and their representatives. The formal notice was sent out on 19 January. In two subsequent letters the solicitors wrote to the First-tier Tribunal seeking a further adjournment on the basis that Miss Easty was unavailable as she had been instructed to appear at another hearing on that date. The solicitors offered alternative dates. The applications were considered by a judge other than Judge Hodgkinson and refused and notices dispatched on 22 and 25 January 2016.

5. As noted above, on 27 January 2016 the appellant was unrepresented. Mr Williams representing the respondent informed the Tribunal that he had spoken to Miss Easty a couple of days before, she was aware of the hearing but that she would not be attending as she had been instructed to represent somebody else in another case.

6. Against that background the Immigration Judge decided that an adjournment would achieve nothing useful. The appeal had been outstanding for some time. The First-tier Tribunal had all the relevant documentation and witnesses were present from both sides. The Immigration Judge also had a copy of Miss Easty's skeleton argument prepared for an earlier hearing.

7. At the hearing today Miss Brown appeared for the appellant and referred me to the grounds of appeal already lodged. The central argument, she said, was whether or not there had been procedural unfairness. If so there should be a fresh hearing as had been indicated by Judge Freeman in the reasons for granting permission.

8. In Miss Brown's submission the Immigration Judge should have called previous Counsel and solicitors to account for what had happened and allowed them to explain their conduct in the case either in writing or by appearing in person. In refusing the adjournment the failure of Counsel and solicitors had been allowed to prejudice the appellant.

9. Miss Brown referred me to the allegations that were made against the appellant and the evidence of the police officer PC Dady which is recorded at paragraph 69. She emphasised that the evidence was given with no cross-examination on behalf of the appellant and the appellant is simply recorded as denying pretty much everything.

10. The First-tier Tribunal Judge then goes on to find as a fact that the appellant, although not convicted of anything other than one offence of possession of cannabis, had committed all of the offences of which he has been suspected or accused. These included serious acts of domestic violence against two former partners, some of which are said to have occurred in front of children. He goes on to say that he finds the evidence overwhelming. He makes findings in respect of the credibility of two witnesses, Miss Thompson and Miss Mattas.

11. The other leg of the submissions made by Miss Brown refers to the ongoing Family Court proceedings. One of the issues was contact with one of the appellant's children, Triston. These proceedings had not concluded by the time of the hearing in January 2016. Although on a previous occasion Judge Hodgkinson had adjourned the proceedings because he considered that the outcome of the Family Court proceedings was potentially material to the outcome of the appellant's appeal, he nevertheless set out to determine the issue. Miss Brown submitted that this was a further error of law.

12. Miss Brown said that the evidence that Judge Hodgkinson relied upon on came from a social worker report from Miss Segar for the Family Court proceedings. There was no one there to assist the appellant in challenging this report which appears to have been largely accepted.

13. Miss Brown submitted that even if there had been representation the proceedings should have been adjourned pending the conclusion of the Family Court proceedings.

14. Mr Tarlow for the respondent relied on his Rule 24 response. The key to this he said lay in paragraphs 21 and 22 of the determination. Miss Easty had known of the adjourned diet but had failed to attend because she was instructed elsewhere.

15. All the evidence was before the First-tier Tribunal and this was a decision of the Secretary of State based on the conduct of the appellant. It was not conducive to the public good for him to remain in this country and the Immigration Judge was well entitled to proceed with a hearing. He submitted that this was merely a disagreement with the First-tier Tribunal's findings.

16. One must have considerable sympathy for the position in which the First-tier Tribunal found itself given the long delays and the absence of Counsel or a solicitor for the appellant. The Immigration Judge might well have assumed from the information placed before him that the reason the non-appearance was Counsel's instructions to represent someone else in another case, but that did not cover the solicitors.

17. It is of course right to point out that the reason for the length of the proceedings cannot be wholly attributed to the appellant. On three occasions the proceedings were adjourned at the instance of the respondent and on the last occasion they were adjourned because Judge Hodgkinson was persuaded that the outcome of the Family Court proceedings were potentially material to the outcome of the appeal.

18. If the test was whether or not the Immigration Judge had acted reasonably it is difficult to see how he might be faulted. However the test to be applied in such a situation is not whether the Immigration Judge acted in a manner which was perverse, irrational or unreasonable in the Wednesbury sense, but whether the refusal of the adjournment caused unfairness to the appellant.

19. Miss Brown placed before me a bundle of papers which contained statements from the solicitor, Miss Stevens, and from Counsel, Miss Easty, concerning their non-appearance. I have read these. It is clear that on the occasion Miss Easty was indeed engaged representing another client elsewhere and Miss Stevens was out of the country.

20. Given the information contained in the statements I am satisfied that what occurred was more muddle than a wilful disregard of the Tribunal. Nevertheless the basic courtesies of informing the First-tier Tribunal of why the appellant was unrepresented were not observed and that was a serious professional misjudgement by both of them.

21. I am however satisfied that the refusal did cause unfairness. In the first place the appellant made it clear to the First-tier Tribunal that he wished to be represented. That of course is not the test and in many situations the fact that a person who wishes to be represented is not will not of itself cause unfairness. However where an appellant indicates to a Tribunal that he or she wishes to be represented, it must be a factor in considering whether proceeding without representation runs the risk of unfairness flowing from that decision. That might come from a lack of confidence in speaking to a judge or in public, from nervousness or from unfamiliarity with legal jargon even where there is assistance from the presiding judge. It might also flow from the nature of the evidence and the issues to be determined.

22. The Secretary of State's decision to refuse the appellant leave to remain in the UK was on the basis of conduct centred on allegations of criminality which, except for one minor conviction, were unproven. These allegations were spoken to by police reports and by a police officer who gave evidence. There was no cross-examination of that officer and no opportunity to fully test that officer's evidence.

23. The evidence of PC Dady went to the heart of the decision that was being made by the Secretary of State. While the appellant had the right to cross examine PC Dady I find that given the range and importance of the evidence it did not afford the appellant a realistic opportunity to challenge and test his evidence. I was informed by Miss Brown that the judge in the Family Court had reached, different conclusions in relation to some of the allegations

24. The hearing on 30 September 2015 was adjourned because Judge Hodgkinson considered that the outcome of the Family Court proceedings would be material to the decision of the First-tier Tribunal. They were not concluded by the hearing on 27 January. However there was a social work report from Miss Segar. The appellant had apparently seen it before the hearing but he had not seen the bundle from the Family Court which was given to him on the day.

25. Judge Hodgkinson gave reasons why he felt he could deal with the case before the conclusion of the Family Court proceedings. He was entitled to do that. However he relied for his conclusions in relation to the appellant's contact with his child on the report of Miss Segar. That report was not accepted by the appellant. I am told that it was subsequently challenged in the Family Court and the main part had been put to one side. In my opinion the lack of representation at the hearing resulted in the appellant not being able to fully challenge the report in that process.

Notice of Decision

26. For these reasons I am satisfied that there has been procedural unfairness in the way in which this matter has proceeded. It is very unfortunate that this matter has occurred but I see no option but to allow the appeal on the basis of procedural unfairness. The parties are agreed that this case should be remitted back to the First-tier Tribunal for a rehearing and that is what I will do.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

LORD BOYD OF DUNCANSBY
Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

Date: