Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48362/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 7 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Mr abdul basit quddusi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A H Newax, counsel instructed by Woodford Wise Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Davey, promulgated on 19 May 2016. Permission to appeal was granted by First-tier Tribunal Judge Osborne on 27 September 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The appellant entered the United Kingdom on 9 September 2007 as a Tier 4 migrant at the age of 16. On 30 June 2012 he applied for leave to remain in the United Kingdom on human rights grounds.
4. On 11 February 2013, the Secretary of State refused the said application on the basis that at the time of the application, the appellant had spent less than 5 years in the United Kingdom in a temporary category and could not, therefore, meet any of the requirements of paragraph 276ADE of the Rules. Furthermore, the respondent did not accept that the appellant had no social or cultural ties to his home country. The appellant did not claim to have a partner or child. There were considered to be no exceptional circumstances. A decision was also taken to remove the appellant under section 47 of the Immigration, Asylum and Nationality Act 2006.
5. The appellant appealed out of time. It was accepted by a duty judge that the notice of decision only came to the appellant's attention in November 2014 and therefore his appeal was in time. His grounds of appeal stated that he wished to rely on his private and family life and length of residence in the United Kingdom. No particulars were provided.
The hearing before the First-tier Tribunal
6. The appeal was initially listed for an oral hearing on 4 September 2015. On 28 August 2015, the appeal was adjourned by letter sent to the respondent, the appellant and Maalik & Co, his previous representative. A notice of hearing containing the new hearing date of 23 March 2016, was posted to the parties on 7 December 2016. In advance of that hearing, both parties submitted bundles of documentary evidence.
7. At the hearing before the First-tier Tribunal, the appellant did not attend. His representative sent counsel, Mr A H Newaz, who sought an adjournment but withdrew representation upon that application being refused. The judge decided that the respondent had no power to make a combined decision including removal directions prior to May 2013 and therefore those directions were invalid. He found that the appellant submitted an altered press report in order to support an important aspect of his case. Otherwise, he did not accept that the appellant could meet any of the requirements of the Rules and also found that his removal from the United Kingdom was not a disproportionate interference with his private life.
The grounds of appeal
8. The grounds of appeal in support of the application argued that the appeal should have been adjourned owing to the appellant's inability to attend due to medical reasons.
9. Permission to appeal was granted on the basis sought.
10. The respondent's Rule 24 response, received on 11 October 2016, indicated that the appeal was opposed. It was noted that the judge had considered the medical evidence, found it to be vague and unhelpful and that the grounds failed to identify any unfairness in the disposal of the appeal. It was further noted that the appellant's claim was confined to his private life, the judge considered all the evidence and made sustainable findings. No family life claim was particularised in the evidence and was not a material issue.
The hearing
11. Mr Newaz advised me that the appellant had been admitted to Whipps Cross Hospital and was therefore unable to attend the hearing at Field House. He admitted to having no documentary evidence of this. While Mr Newaz did not seek an adjournment, I considered it appropriate to proceed with the error of law hearing regarding which the appellant's presence was unlikely to be relevant, unless a decision was made to remake or remit the matter, in which case it could be adjourned at that stage. It transpired that Mr Newaz's papers were incomplete. I therefore loaned him a copy of the permission application and the grant of permission and afforded him time to consider them before making his submissions.
12. Mr Newaz concentrated his submissions on the basis upon which permission was granted, that is it was at least arguable that the appellant's presence would have assisted his appeal. He argued that the evidence of the appellant was crucial as he was claiming that he could not achieve any leave to remain in Saudi Arabia. Furthermore, the appellant would have been able to give more detail of his private and family life.
13. In terms of materiality, Mr Newaz submitted that, on balance, the appellant could succeed solely on the basis of 8 years of residence in the United Kingdom and that the documentary evidence before the judge was limited. The appellant, in his witness statement said he did not speak any Pakistani language and this could have been tested in evidence. He accepted that the grounds of appeal did not challenge the appellant's use of a doctored document, but argued that if the appellant had been present he could have been cross-examined on that point. He urged me to remit the matter to the First-tier Tribunal for a new hearing.
14. In reply, Mr Avery emphasised that the grounds were framed purely on whether the appeal should have been adjourned for medical reasons. He argued that the judge's dealings with the adjournment application were entirely proper. The content of the medical note raised clear issues; issues which were put to the appellant's representative and who was given an opportunity to clarify those issues. That opportunity was declined and it was appropriate for the judge to proceed in those circumstances.
15. Mr Avery referred me to [2] and [3] of the decision and asked me to find that there was nothing wrong with the approach taken by the judge. With regard to materiality, he asked me to note that the appellant had not been in the United Kingdom for long, only 5 years at the time of the application and he was trying to found an Article 8 claim on that basis. The appellant put in documentary evidence which was considered by the judge and an issue arose from evidence provided [10 - 13] in that the press article produced by the appellant was different to the same item downloaded by the Presenting Officer. The judge looked at both and concluded that the reference to the age of 21 in the appellant's version was an alteration. That finding had not been challenged. If the appellant had been in a position to contest the finding as to deception, would have done so. It was poor of the appellant to rely on a fairness point when he has been providing false documentation and it was hard to see how he could succeed now. Any oral evidence he could have given regarding returning to Saudi Arabia would not make much difference, it was a question of fact and he put in false evidence and tried to deceive the tribunal. If he had attended the hearing it would not have materially affected the outcome.
16. Mr Newaz added only that if the appellant had attended, he might have been able to persuade the tribunal that paragraph 276ADE(v) of the Rules might apply.
Decision on error of law
17. At the end of the hearing, I announced that the judge made no error of law and that I would be upholding his decision. My reasons are as follows.
18. I have had regard to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 regarding the power the First-tier Tribunal has to adjourn or postpone a hearing under its case management powers. Regard should have been had to the overriding objective set out in Rule 2 requiring the Tribunal to deal with cases fairly and justly.
19. I have also had regard to the decision in Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC). The crucial question being whether the refusal of an adjournment deprived the affected party of a right to a fair hearing. I have also taken into consideration the Presidential Guidance note no. 1 of 2014 and note that factors weighing in favour of adjourning an appeal, even at a late stage, include whether further time is needed because of a delay in obtaining evidence which is outside the party's control, for example, where an expert witness fails to provide a report within the period expected.
20. That is to be balanced by factors weighing against the grant of an adjournment, namely that the application was not made at the earliest opportunity or is speculative or that it does not show that anything material would be achieved by the delay.
21. In SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 at [13], it was held that when considering whether an adjournment should have been granted, the test was not irrationality or whether the decision was properly open to the FTTJ; the sole test was whether it was unfair. As stated in Nwaigwe, supra, in practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. I find that the appellant has not been so deprived.
22. The judge's decision and reasons displays a most careful approach taken to the application for an adjournment. He took at face value the argument that the appellant had attended a previous hearing and accepted that this indicated that he had wished to participate in the appeal in the past. The case file shows that the appeal was adjourned in advance of the previous hearing date. Over five paragraphs [2-7], the judge sets out the arguments made on the appellant's behalf and his concerns as to the medical evidence, dating 2 days prior to the hearing, which purported to show that the appellant was too unwell, with acute gastroenteritis, to attend the hearing.
23. The judge noted that the medical note gave no indication when the appellant began to suffer this ailment, the certificate did not indicate whether this condition was a past or present matter, there was no indication that the doctor was treating the appellant and no explanation as to why the appellant would not be able to attend the hearing centre. The judge rightly noted that the certificate emanated from a surgery in West London whereas the appellant lived in East London.
24. There is no error in the judge commenting on the ability of the appellant to cross London to see a GP when he was claiming to be unable to undertake a shorter journey to Taylor House. Further reasons provided by the judge included the fact that the medical certificate did not indicate whether the doctor examined the appellant or how the certificate was obtained.
25. At [5] of the decision, the judge records that he offered Mr Newaz the opportunity to contact the appellant's solicitors as well as the medical centre or doctor concerned but he declined to do so, stating that this was unlikely to be productive. I should add that Mr Newaz told the judge that he knew nothing about the circumstances of the inception of the claimed illness, the current state of the illness or the ability of the appellant to attend to give evidence.
26. At [5] and prior to recording his overall conclusion regarding the application, the judge directs himself appropriately with specific reference to the overriding objective and the issue of fairness. He referred to the evidence provided by the appellant in his bundle which included his witness statements and the matters raised therein. Only then did the judge proceed to conclude that he was satisfied that the appeal could be properly and fairly decided on the papers.
27. There was no unfairness with the judge's approach and I do not accept that the appellant was deprived of a fair hearing of his appeal. While it is not necessary to say so, I would only add that the appellant's claim concerned aspects of private life enjoyed since his arrival in the United Kingdom as a student in 2007. The appellant's witness statement did not expand on a claimed family life, in that it referred only to a network of friends.
28. Given the lack of compliance with the Rules and the lack of compelling circumstances, the presence of the appellant was most unlikely to have had a material impact on the outcome of the appeal. In his witness statement, the appellant states that he used to live in Saudi Arabia with his parents but that he would not be permitted to return there because he was aged 22. To support that contention, the appellant relied upon a press article stating "Dependent over 21 can't be sponsored by father." As the judge records at [13], the presenting officer provided the same article which was headed "Dependent over 25 can't be sponsored by father." The judge's detailed reasons for concluding that the article submitted by the appellant was an "unapproved alteration, manufactured because the Appellant was 22 years of age (ie under 25)" were unchallenged in the grounds. The judge found, on the evidence before him, that the appellant could return to Saudi Arabia and be dependent upon his parents as he had before. Consequently, Mr Newaz's submission that the appellant could succeed under paragraph 276ADE in relation to potential removal to Pakistan, did begin to indicate that the appellant's presence at the hearing would have resulted in a materially different outcome.

Conclusion
The First-tier Tribunal Judge made no error of law and his decision is upheld.

Signed: Date: 4 November 2016

Upper Tribunal Judge Kamara