Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA389332014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

miss immachulate kabugho
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Murphy (Counsel)
For the Respondent: Ms A Brocklesby-Weller (Senior Home Office Presenting Officer)

DECISION AND REASONS ON ERROR OF LAW

1. The appellant's appeal against a decision to refuse to issue her with a residence card, as a person falling within Regulation 8 of the Immigration (European Economic Area) Regulations 2006 ("the 2002 Regulations") was dismissed by First-tier Tribunal Judge Carroll ("the judge") in a decision promulgated on 22 September 2015.

2. The appeal was listed for hearing on 21 August 2015. The appellant and a witness (her sister) appeared, together with a representative from the acting firm of solicitors. Counsel was expected but was not present when the case came before the judge at 2:30pm, having been assigned to the float list at Taylor House. The judge was informed that Counsel was in Wandsworth County Court and unable to reach Taylor House before 3:00 or 3:30pm. An adjournment was sought, which the judge refused on the basis that the appellant's representative should have been ready to present the case at any time from 10:00am on the hearing day. Counsel should not have been double-booked in another court at a considerable distance from Taylor House. The appellant's representative then said that he was unable to present the case on behalf of the appellant. The judge told those present that she would decide the appeal on the basis of the documentary evidence before her, in accordance with the 2014 Tribunal Procedure Rules. This summary of events I have taken from paragraph 3 of the decision.

3. An application for permission to appeal was made on the appellant's behalf, it being contended first, that the judge erred in refusing to grant an adjournment and secondly, that the judge failed to consider relevant evidence before her in consequence of deciding the matter "on the papers". Permission was refused by a First-tier Tribunal Judge and the application renewed. Permission was then granted by an Upper Tribunal Judge on 18 April 2016. The judge granting permission stated that if procedural unfairness were found, such as to amount to an error of law material to the outcome, the Upper Tribunal would be likely to proceed to hear any evidence and to remake the decision.

4. In a Rule 24 response from the Secretary of State dated 3 May 2016, the appeal was opposed. As the case appeared on the float list at Taylor House, it may not have been possible to put it back to await Counsel's arrival. In any event, there was no reason why the representative present could not have called evidence and then made submissions. There was a paucity of evidence showing that the appellant was dependent upon her EEA national sponsor while she was in Uganda and the judge had correctly pointed out that no further evidence had been adduced since dismissal of an earlier appeal in 2012. Overall, the evidence fell far short of demonstrating dependency and so the appeal was properly dismissed.

Submissions on Error of Law

5. Mr Murphy said that the case had a chequered history. The judge had referred to an earlier decision, in 2012. The appellant's instructions were that she was unaware of this decision. She arrived in the United Kingdom in 2011 and an application for further leave was refused in March 2012. The appellant sought legal advice in 2014. The hearing was listed following fresh proceedings, in March 2015. The appellant appeared on that occasion with solicitor and Counsel but the case was adjourned as the Secretary of State's decision letter was not available. The appeal was re-listed for hearing at Taylor House on 21 August that year and this was the first time the appellant would have been in a position to give oral evidence. The 2012 decision was also made "on the papers".

6. As was apparent from Nwaigwe [2014] UKUT (IAC) 418, the key issue was fairness. Counsel due to appear in August 2015 might very well have been at fault by failing to appear and indicating that he would be unable to do so until so late in the afternoon but the key question was whether the appellant received a fair hearing. Even if the judge, on analysis, acted reasonably, the test remained one of fairness. As the representative present at the hearing was unable to continue to act, the appellant was in fact unrepresented and the judge ought to have adjourned the case. Any failure by the appellant's representatives (and Mr Murphy said that the appellant was pursuing matters in this regard) was not her fault.

7. The judge's error in failing to adjourn and so giving rise to unfairness was material. The appellant was entitled to give a response to the case against her. She could have given oral evidence regarding the Western Union receipts. Giving her decision on the papers, the judge had referred to the earlier decision, also on the papers but the appellant had an account to give about the limited documentary evidence. If she had given evidence, it would then have been up to the judge to accept or reject that evidence. In paragraph 8 of the decision, the judge referred to the Devaseelan guidelines but in deciding the appeal as she did, on the papers, the appellant had no opportunity to give oral evidence. The adverse findings made at paragraphs 10 to 14 of the decision could all have been put to the appellant, if she had been given an opportunity to explain her case. In finding at paragraph 13 that there was no supporting documentary evidence, the judge failed to note that DNA evidence showed the biological relationship between the appellant and her sister and witness statements and evidence from the appellant's husband and children could also have been made available.

8. Finally, Article 8 was available as a ground as the appellant had looked after nephews and nieces while present in this country.

9. Ms Brocklesby-Weller said that it was not clear whether the appellant volunteered to give evidence, and if she had she might have been able to respond to the Secretary of State's case at the hearing. In any event, she was represented and she and her sister had made statements. The witness statements were extensive and the appellant's rebuttal of the Secretary of State's case was contained in them. Oral evidence might have confirmed that she and her sister wished to rely upon their witness statements but matters would not have been taken much further. There was no breakdown of the assets of the family and little to assist with the key question of whether the appellant's essential needs were met by her sponsor. The judge was entitled to draw attention to the very small number of Western Union receipts. Paragraph 10 of the decision contained the crux of the judge's reasoning regarding historic dependency.

10. Overall, there was insufficient to show that the appellant had discharged the burden of proof and so no material error. The judge directed herself in relation to the documentary evidence and the paucity of evidence regarding past dependency and there was nothing to show that she had missed anything out. Lack of representation and the lack of a hearing did not reveal a material error of law.

11. In a brief response, Mr Murphy said that the appellant was clearly not at fault in finding herself without a representative and having, in effect, been deprived of a hearing.

Findings and Conclusions

12. As Mr Murphy submitted, the key question is whether procedural unfairness resulted from the decision of the judge to decline to adjourn the case and to decide it on the papers. The guidance from the Upper Tribunal in Nwaigwe shows that the critical question is not whether the judge acted reasonably but whether the appellant received a fair hearing.

13. The procedural history is important. Dismissal of an earlier appeal in 2012 was also on the basis of documentary evidence, there being no hearing. This may have been the appellant's choice but the position is not clear and Mr Murphy said that his instructions were that the appellant was totally unaware of the 2012 decision. In the present proceedings, the appellant appeared, ready to give evidence, in April 2015 but the case was then adjourned, apparently because the Secretary of State's decision letter was not available on the day.

14. There is no doubt that the appellant and her sister were ready to give oral evidence in August 2015, probably to adopt their witness statements and respond to the Secretary of State's case. I accept Mr Murphy's submission that the appellant cannot be blamed for the absence of Counsel, who certainly should not have been double-booked at Wandsworth County Court on the day, or for the rather surprising indication from her representative that he was unable to act in Counsel's absence.

15. There were two case management decisions made by the judge. First, she refused to adjourn the case and then, secondly, she decided to dispense with the hearing and to determine the appeal on the basis of the documentary evidence before her. Each of these steps may properly be taken, of course, in accordance with the 2014 Procedure Rules. The second step, however, is perhaps the more important one to consider in relation to fairness. Irrespective of the merits of the adjournment application, the judge's decision to dispense with a hearing removed from the appellant any possibility that she and her sister might give oral evidence or respond further to the Secretary of State's case. The judge's adverse findings at paragraphs 10 to 14 of the decision might very well have been put to the appellant so that she could comment on them. Although there was considerable detail in the witness statements before the judge, they were not comprehensive.

16. There is nothing in the decision (or the Record of Proceedings) showing that the judge canvassed with the appellant the possibility that even though her representative was unable to assist, the hearing might nonetheless proceed, with the appellant and her sister giving evidence. There is also nothing in the decision which expressly refers to rule 25 of the 2014 Procedure Rules and identifies which of the circumstances set out in rule 25 (1) applied in the case. If the judge considered that it was just to determine the appeal without a hearing, rule 25 (2) required an opportunity to be given to the parties to make written representations as to whether there should have been a hearing

17. Turning to the dismissal of the adjournment application, the judge's proper concerns about the conduct of the solicitors and Counsel could have been addressed differently, by referring their conduct to professional or regulatory bodies. I readily appreciate the practical difficulty the judge found herself in, dealing with a float list case relatively late in the day. Keeping the focus on fairness, in accordance with Nwaigwe, I conclude, however, that procedural unfairness was the result of the two case management steps which were taken. There might have been no unfairness at all if, having refused the adjournment, she had proceeded with the hearing and allowed the appellant and her sister to give evidence, putting the Secretary of State's case to the witnesses as necessary. As it was, moving from the refusal of the adjournment to deciding the appeal without a hearing caused the appellant to lose an opportunity to explain her case and provide further detail which might have assisted the judge in assessing the evidence overall. I conclude that the decision of the First-tier Tribunal must be set aside, as a consequence of the procedural unfairness, and re-made.

18. The representatives were agreed that the appropriate venue for re-making the decision is the First-tier Tribunal. I was initially minded to remake the decision, in accordance with the suggestion made by the Upper Tribunal Judge who granted permission to appeal. However, taking into account the state of the list on 2 June 2015 (and the cases still to be heard on that day), and reflecting on the obvious fact that the appellant now has the opportunity to put her case fully, and to give oral evidence, I conclude that the appropriate venue is indeed the First-tier Tribunal. I have taken into account section 12 of the 2007 Act and the Senior President's Practice Direction.

Notice of Decision

19. The decision of the First-tier Tribunal is set aside, as containing a legal error, and shall be re-made in the First-tier Tribunal at Taylor House, before a judge other than First-tier Tribunal Judge Carroll.

20. There has been no application for anonymity at any stage in these proceedings and I make no direction on this occasion.

Signed Date 14 June 2016

Deputy Upper Tribunal Judge R C Campbell