Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA284522014

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 1st June 2016 On the 10th June 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MRS BIBI VEENA AMMANTOOLA
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Querton (Counsel)
For the Respondent: Mr Tufan (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Cassel promulgated on the 20th October 2015, in which she dismissed the Appellant's appeal on Human Rights grounds both under and outside of the Immigration Rules.
2. Neither the Appellant nor her representatives Messrs Malik & Malik Solicitors appeared at the appeal hearing before First-tier Tribunal Judge Cassel on the 2nd October 2015 at Taylor House, and Judge Cassel at [6] noted that no further correspondence had been received and there was no request to withdraw the appeal and that although giving time for the Appellant to arrive by considering the appeal later in the day, she did not attend nor did her representatives, and in such circumstances Judge Cassel proceeded to hear the appeal in the Appellant's absence.
3. The Appellant has sought to appeal that decision to the Upper Tribunal and permission to appeal has been granted by First-tier Tribunal Judge Mark Davies on the 12th April 2016, when he stated that "There is no indication in the papers that either the Appellant or her representatives were notified of the date of the hearing. This would have been obvious to the Judge had the papers been properly considered. The Judge made an error of law in proceeding to hear the appeal and dismissing it. The Appellant had not had a fair hearing. The grounds and the decision do disclose an arguable error of law.".
4. However, within the application for permission to appeal it was not in fact argued by the Appellant that she had not been originally made aware of the date of the appeal hearing on the 2nd October 2015. It was argued by the Appellant that the appeal had initially be listed for hearing on the 20th March 2015 but by a letter from the Tribunal dated the 19th March 2015, the appeal hearing had been adjourned until the 2nd October 2015, but that on the 29th September 2015, Mesrss Malik & Malik Solicitors received a call from the Tribunal stating that the appeal hearing on the 2nd October 2015 was adjourned and that a new appeal hearing date would follow and that they were surprised to receive the determination of Judge Cassel dated the 20th October 2015 indicating that no parties attended. It was argued that although the First-tier Tribunal Judge initially called the case on at 10.00am but put it back to 1.00pm to give time for the Appellant or representatives to arrive, there was no indication that the Tribunal called the solicitors to ascertain if a representative was attending given that there was no letter from Malik & Malik saying they would not be representing her or that they were no longer instructed and that a bundle had been served by the Appellant on the 16th March 2015 and that the Appellant is an elderly lady who wants to give evidence before a Judge along with her daughter. It is argued that in such circumstances where the Tribunal had phoned the solicitors saying the appeal was to be adjourned, that there was in effect procedural unfairness. This is the basis of the Appellant's appeal. It was on this basis that the appeal came before me in the Upper Tribunal.
5. Ms Querton on behalf of the Appellant relied upon her Skeleton Argument, which I have fully considered. She further argued that the solicitors had got a phone call saying that the case was to be adjourned and that they had told the Appellant that and that the point in the case was a point of procedural fairness and that the case should not have gone ahead where the Tribunal had phoned the solicitors to say that the case was being adjourned. She argued that the solicitors had been instructed from the outset and had even made the original application on behalf of the Appellant and lodged the bundle of documents in March. She argued that the decision made to adjourn seemingly had not been actioned and the appeal had remained in the list and that as this was a matter of procedural fairness, it did not matter whether or not there was in fact any material error established, and that the decision should be set aside on the grounds of procedural fairness.
6. In his oral submissions on behalf of the Respondent Mr Tufan agreed that materiality did not matter as this was an argument about procedural fairness. He noted that within the Grounds of Appeal it was said that a statutory declaration could be provided from the case worker who took the call at the solicitors should the Tribunal require it, but that no statutory declaration had been provided. However, he conceded that the Appellant's solicitors firm were a respectable firm of solicitors and that he was not doubting what they said, but argued that there was no evidence either way. However he accepted that if the Tribunal did accept what was being said by the solicitors, that it may have been unfair to the Appellant to proceed.
7. In reply Ms Querton argued that the application for the permission to appeal had been drafted by the solicitors and that the Appellant herself had not attended as she had been advised not to attend by her solicitors, they having been told by the Tribunal that the case was to be adjourned. She argued that in such circumstances the case should be remitted back to the First-tier Tribunal for re-hearing.
My Decision on Error of Law and Materiality
8. It is clear having considered the file that the appeal was initially listed for hearing on the 20th March 2015, but by a letter from the First-tier Tribunal dated the 19th March 2015, that appeal was adjourned until the 2nd October 2015. That notification of hearing was sent both to the Appellant and to her solicitors Messrs Malik & Malik. I also accept that the Appellant had filed a bundle for the appeal on the 16th March 2015 and had indicated that she wanted an oral hearing.
9. Although there is nothing within the file to indicate that in fact a phone call was made to Messrs Malik & Malik indicating that the case on the 2nd October 2015 was to be adjourned, I do accept and find as a fact having considered the permission to appeal application which was drafted by the solicitors and having heard submissions from Ms Querton in this regard that in fact a phone call was made by the Tribunal to Malik & Malik Solicitors on the 29th September 2015, indicating that the appeal hearing on the 2nd October 2015 was to be adjourned and that a new hearing date would follow. Although I have not seen any statutory declaration from the case worker who took the call, that is clearly the position of Messrs Malik & Malik as set out within the permission to appeal application drafted by them and also was clearly the instructions of Ms Querton. Mr Tufan on behalf of the Respondent was not seeking to doubt what was being said by the solicitors and said that they were a respectable firm, and in such circumstances, I do accept and find as a fact that such a phone call was made, even though no record of it was apparent from within the file. Clearly, if a record had been apparent of such a phone call on the file, and it had been clear to Judge Cassel that in fact a phone call had been made indicating that the appeal was to be adjourned and that phone call had been actioned, such that the appeal had been taken out of the list, then the case would not have been heard and considered by her.
10. Absolutely no criticism can be made of Judge Cassel in this regard, given the fact that there was nothing on the file to indicate that such a phone call had been made to the solicitors by the Tribunal indicating the appeal was to be adjourned. However, the fact that such a phone call was made is also supported by the fact that the solicitors had been involved throughout and had made the initial application on behalf of the Appellant, had filed the initial Grounds of Appeal, had filed a bundle on behalf of the Appellant on the 16th March 2015, and at no stage had indicated that they were no longer representing her or that they would not be attending. Again, the fact that neither the Appellant nor her solicitors attended, fits with the assertion that the solicitors had told the Appellant that she need not attend, having been told by the Tribunal that the case was to be adjourned.
11. In such circumstances given that I have found that someone from the Tribunal did make such a phone call indicating that the appeal was to be adjourned, I do consider that there was procedural unfairness in the case being heard in such circumstances in the absence of the Appellant and/or her solicitors. A phone call having been made that the appeal was to be adjourned, a record of that should have been put on the file, and a new hearing date sent out. It was procedurally unfair for that not to have happened, so that the case then remained in Judge Cassel's list and was considered by her on the 2nd October. In considering procedural unfairness, this has to include not only fairness on the part of the Judge, but also fairness on the part of the Tribunal service itself, in dealing with the appeal. I do make no criticism of Judge Cassel, but in light of my findings that a phone call was made by the Tribunal Service that the case was to be adjourned, it was procedurally unfair in such circumstances for the case to have proceeded. As this amounts to a matter of procedural unfairness, I do find that the decision of First-tier Tribunal Judge Cassel should be set aside, and the case remitted back to the First-tier Tribunal for re-hearing before a differently constituted First-tier Tribunal.

Notice of Decision
The decision of First-tier Tribunal Judge Cassel having been reached in circumstances amounting to procedural unfairness, the decision of First-tier Tribunal Judge Cassel is set aside;
The case is remitted back to the First-tier Tribunal for re-hearing before a differently constituted First-tier Tribunal.

Signed
R F McGinty
Deputy Upper Tribunal Judge McGinty Dated 4th June 2016