Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00220/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 17 January 2017
On 19 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ALIREZA [K]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Ms N Loughran, of Loughran & Co, Solicitors

For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant's appeal against refusal of asylum was dismissed in a decision by First-tier Tribunal Judge Bradshaw, promulgated on 20 October 2016.
2. On 15 November 2016 FtT Judge Grimmett granted permission to appeal to the UT, saying that it was "arguable that the judge, having asked for written submissions at the end of the hearing, should have reconvened the hearing when those submissions included significant new medical evidence".
3. The grant of permission says nothing about anything else arising from the proposed grounds; but in light of the outcome on the foregoing point, that does not matter.
4. The FtT decision deals with the new evidence issue at paragraphs 26 - 37. The judge set out the Ladd v Marshall principles at paragraphs 30 - 31. In so far as the materials tendered included medical evidence, the judge said this was a new matter; that no reference had been made to a health issue when he asked for confirmation of the basis of the appeal at the beginning of the hearing; that the "record of the CMR of 30 August 2016 specified there was no medical evidence to be called"; that in all the circumstances it was not appropriate "for the said psychological trauma service report to be admitted into evidence"; and that there were "appropriate procedures to cover such a situation" [presumably a reference to the possibility of a fresh claim].
5. There had been no "CMR" (case management review hearing). The reference to such a hearing must also involve some slip over dates, as 30 August 2016 was the date of the full hearing before Judge Bradshaw.
6. There was a "pre-hearing review", a paper exercise only, on 16 August 2016. Just before then, the appellant switched to his present representatives. The note on the file of the pre-hearing review does not record that no medical evidence was to be called, nor is there any explicit indication to that effect from previous or present representatives.
7. Ms Loughran said that information from the appellant had showed that medical evidence might be appropriate, and a report had been sought promptly, once she had been instructed and authority obtained for the expenditure on legal aid. The report was available only on 1 September 2016, so there was no delay in obtaining or tendering it. The medical evidence was advanced for its relevance to the asylum claim and the evaluation of the appellant's evidence. It was not said to found a separate case on health grounds under article 3 or article 8. The judge had allowed himself to be misled by the information that no case was proposed on health grounds.
8. In my view, this is one of those unfortunate cases where a series of relatively minor misunderstandings and shortcomings of procedure, to some extent attributable to parties but also to the judge, have added up to error of law.
9. The judge was not helped by the fact that he does not appear to have been told at the hearing that a medical report had been instructed, but not received, or by the fact that there was no application for adjournment, in advance or at the hearing, and no application to go "part heard". That is a framework within which the medical evidence looked at first glance as if it went only to a separate and novel case on health grounds.
10. It may often be useful to have written submissions, but where a hearing has not been completed, and even if such submissions are directed, I think the better practice is to fix a further hearing, so that submissions are finalised in open forum.
11. The desirability of a further hearing should have become plain, once the application to introduce further evidence was made, to test the issues by exchange of oral submissions before the judge.
12. There was no delay through want of due diligence on the part of the appellant or his representatives in obtaining the medical report. It was capable of having a significant influence on the result. There is no reason to think the report might be found anything but apparently credible; the issue is how far it takes the appellant's case. Once matters are more clearly scrutinised, the Ladd v Marshall test was met. The evidence should not have been excluded. Further submissions should have been heard on its effect.
13. The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said on that occasion. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
14. The member(s) of the FtT chosen to consider the case are not to include Judge Bradshaw.
15. No anonymity direction has been requested or made.

18 January 2017
Upper Tribunal Judge Macleman