Tribunal decisions

The decision

IAC-HW-MP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29839/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th November 2016
On 29th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

mr kashif raza
(ANONYMITY DIRECTION NOT MAde)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed of Immigration Services, Sheffield
For the Respondent: Mr Diwncyz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan whose date of birth is recorded as 2nd May 1990. He first entered the United Kingdom on 29th April 2011 as a Tier 4 Student with a valid grant of entry clearance until 12th August 2012. A subsequent application to vary that leave was refused. There was no appeal. On 9th March 2015 he then applied for leave to remain in the United Kingdom on the basis of a relationship which he claimed to enjoy with one Miss Perwaiz. On 18th August 2015 a decision was made to refuse that application and the Appellant appealed on human rights grounds.
2. On 19th April 2016 his appeal was heard by Judge of the First-tier Tribunal Holmes sitting at North Shields. Having heard the evidence, in a decision dated 20th April 2016, he dismissed the appeal. Not content with that decision, by Notice dated 6th May 2016 the Appellant made application for permission to appeal to the Upper Tribunal.
3. The grounds run to 23 paragraphs. However, at the beginning of the hearing before me it was established that this appeal turns on whether the Appellant and the interpreter at the hearing in the First-tier Tribunal understood one another because on behalf of the Appellant it was accepted that if that were the case then the other grounds would fall away because the findings in dispute would at least have been open to the judge notwithstanding the fact that they were in issue.
4. On 25th October 2016 Judge of the First-tier Tribunal Keane granted permission. He noted in doing so that the judge's notes had under the heading "Introduction", "Appellant's English poor" followed by the words "non-existent" in brackets but then struck out.
5. The burden of the submission made before me, by Mr Ahmed, who appeared below was that the judge was aggressive in his intervention to such an extent that the Appellant was prevented fairly from presenting his case.
6. I observe that it is not in dispute that the judge informed the Appellant at the commencement of the hearing that he should give his evidence in English if able to do so but otherwise should use the interpreter who was made available to him. No objection generally is taken to that direction. The objection taken in the grounds, and before me, is that having informed the Appellant that he might give evidence in English the judge then penalised the Appellant for his attempts to do so.
7. Although Mr Ahmed who appeared below did not provide the Tribunal with a witness statement in support of the grounds, no objection was taken by Mr Diwncyz to Mr Ahmed explaining to me what his perceptions were of the hearing. Mr Ahmed very fairly and properly accepted that it would have been open to him to raise in his submissions to the judge his concerns about the conduct of the case and that he might more forcefully have expressed his views to the judge about any concerns he had during the course of the proceedings, yet he did not do so. He took the view that it would have been discourteous had he expressed himself as forcefully as he had wanted.
8. The difficulty which I have in resolving the matter before me, of course, is that I was not present and there is no recording of hearings in the First-tier Tribunal. Certain it is that a hearing in the First-tier Tribunal is not a dress rehearsal for an onward appeal. The appeal in the First-tier Tribunal is the venue in which all matters ought fairly to be aired. If therefore an Appellant is represented and that representative has concerns about the manner in which the judge is conducting him or herself or indeed the manner in which the evidence is being received, then the proper venue to voice those concerns is at that hearing.
9. It is perhaps not surprising that there are no notes in the judge's hand of any complaints being made during the hearing for I have no doubt that Judge Holmes would not have considered himself to have been acting improperly even if the perception had been given to others. However, Mr Diwncyz also has no note from the Presenting Officer of any points being taken during the course of the proceedings with respect to any intervention or interventions by the judge.
10. Where I significantly disagree with the submissions made is that in my judgment the finding of the judge at paragraph 15 of the Decision, that the Appellant repeatedly failed to co-operate with the interpreter and had to be warned in the strongest terms that his failure to do so was not assisting his own appeal, cannot be said to flow necessarily, as Mr Ahmed would invite me to find, from the initial instruction as to how evidence should be given. Any judge makes his or her findings on the basis of all of the evidence including, to some extent (albeit with appropriate caution) the demeanour and, the manner in which questions are answered. If the judge formed the view that the way in which the Appellant answered questions was such that the Appellant was being evasive and failing to co-operate then the judge was entitled to put that into the balance in his consideration of the totality of the evidence.
11. I observe, though I do not by this invite any complaint to be made, that not only was the point now taken not taken before the judge but was not taken either before the written Decision was received from the judge. If there had been such concerns about the way in which the judge conducted himself then I would have expected those to have been brought to the attention of the Tribunal irrespective of the decision but that was not done.
12. Since the focus in this case is entirely upon whether or not there was an error of law arising from whether the Appellant was given a fair opportunity to express himself through an interpreter, and since I do not find that that has been established before me because the Appellant was provided with an interpreter in a language which was his mother tongue and was instructed by the judge that he should use that interpreter as he best thought, then I find no error of law is established in this case.
13. In all the circumstances the Appellant has not satisfied me of that which is contended for and in the circumstances the appeal is dismissed.
DECISION
The appeal to the Upper Tribunal is dismissed and the decision of the First Tier Tribunal is therefore affirmed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker