Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39352/2014
IA/39361/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 24 November 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Indika Pushoa Kumamara Munasinghe Munasinghe Imiyage
FATHIMA BUSHRA MUNASINGHE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Jegarajah, Counsel, instructed by Chris Raja Solicitors
For the Respondent: Mr Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are citizens of Sri Lanka who was born on 12 February 1972. Having refused their claims for asylum, the Secretary of State decided to remove the appellants to Sri Lanka by a decision dated 17 September 2014. The appellants appealed against that decision to the First-tier Tribunal (Judge Monson), who, in a decision promulgated on 27 May 2016, dismissed the appeal. The appellants now appeal, with permission, to the Upper Tribunal.
2. This appeal has had a long litigation history. Unfortunately, and for the reasons I give below, the appeal will have to be heard again in the First-tier Tribunal. On the last occasion, the appeal came before Judge Monson at Taylor House on 4 May 2016, a Ms Kadurugamuwa appeared with the appellant in order to apply for an adjournment of the hearing on the grounds that Counsel had been unable to represent the appellant as a result of illness. The judge records [29] that Ms Kadurugamuwa had been "the person at the solicitor's firm who had personal conduct of the appellant's case [but who] did not feel that she could present their case as she was only a trainee solicitor and it was a very complicated case." Accompanying the grounds of appeal is a letter from Ms Kadurugamuwa. She explains that she was not a trainee solicitor but a qualified lawyer from Sri Lanka. She also states that she was not the person at Raja Solicitors who had conduct of the file on behalf of the appellant. Ms Kadurugamuwa explained in her statement that she had been completely unaware that Counsel would be unable to attend the hearing before her clients had told her that the reception officer at Taylor House had informed him that Counsel was unwell. Ms Kadurugamuwa attempted in vain to contact Counsel so she contacted the principal solicitor at her firm who advised Ms Kadurugamuwa to apply to the Tribunal for an adjournment. She duly made such an application but the judge refused it as he records at [30]. The judge refers to the overriding objective and also to a lengthy skeleton argument which had been prepared by Counsel at a previous hearing. The judge considered that the appellant's case was "precisely the same as it had been nearly a year earlier." On that basis, he proceeded with the hearing.
3. At the Upper Tribunal hearing on 14 November 2016, Mr Duffy, for the Secretary of State, did not seek to defend the First-tier Tribunal decision. He told me that he acknowledged that the appellant had been denied a fair hearing.
4. I agree that the hearing before the First-tier Tribunal should, in these particular circumstances, have been adjourned. The judge is right to point out that there was a lengthy skeleton argument prepared by Counsel for the previous hearing but he appears to have overlooked the fact that experienced Counsel, who had been properly briefed, would have been in a position to make submissions, which may have included submissions arising from matters arising in cross-examination of the appellant. Ms Kadurugamuwa had attended before the Tribunal expecting to sit behind Counsel and takes notes and I accept that she was, through no fault of her own and, more particularly of the appellant, in no position to offer the same level of representation. Indeed, the judge makes little reference to Ms Kadurugamuwa's involvement in the hearing whilst he refers extensively to the skeleton argument of the previous Counsel. In effect, the appellant was in no different position than if he had not been represented at all. Given that Counsel's illness occurred so late in the day and that the failure of Counsel to attend was no fault of the appellants, I agree that the appellants have been deprived of a fair hearing in this instance.
Notice of Decision

The appeals are allowed. The decision of the First-tier Tribunal is set aside. The appeals shall be remitted to the First-tier Tribunal (not Judge Monson) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed Date 23 November 2016

Upper Tribunal Judge Clive Lane