Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00486/2018

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 8 February 2019
On 14 February 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE J M HOLMES

Between

T. T.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms Cleghorn, Counsel, instructed by Halliday Reeves Law Firm
For the Respondent: Mr Bates, Home Office Presenting Officer

DECISION AND REASONS
The Appellant, claiming to be a national of Eritrea, entered the UK illegally and made a protection claim. That was refused on 21 December 2017, and in doing so the Respondent placed in contention his general credibility as one who had used a number of identities, given an inconsistent account, and was not able to provide the information reasonably to be expected of one who had told the truth about his nationality.
The Appellant's appeal was heard by First-tier Tribunal Judge Hillis, who allowed it on the basis he accepted that the Appellant was indeed an Eritrean national, in a decision promulgated on 24 May 2018.
The Respondent's application for permission to appeal was granted by First-tier Tribunal Judge Alis on 4 August 2018 on the ground that it was arguable the Judge had failed to conduct a fair hearing. The Appellant did not reply to that grant with a Rule 24 response.
Inspection of the Tribunal file discloses that the Appellant's representatives declared to the Tribunal for the purposes of the PHR that he had no intention of calling any witness at the hearing of his appeal, other than himself. That was an odd declaration to make, indeed it was patently untrue, since an internal email of 23 January 2018 [ApBp6] which passed between members of that firm noted that he did wish to call his wife to give evidence, but the author did not believe he had enough diary time available to interview her. The firm did seek an adjournment of the hearing of the appeal in order to obtain expert evidence as to the Appellant's true nationality, but offered no details of who was to be instructed, when any relevant expert could provide a report, or, even that an application for public funding had been made for that purpose. As a result the Judge who dealt with the PHR on 31 January 2018 refused to adjourn the listing of 14 February 2018, but invited the Appellant to submit a properly detailed application, when the issue would be reconsidered.
That invitation was duly accepted, and as a result on 7 February 2018 the appeal was adjourned to allow the Appellant to instruct Dr Gunter Schroder, and relisted for Monday 14 May 2018. It is not clear why, but notwithstanding that adjournment, on 9 February 2018, the Appellant's representatives filed and served a bundle of the evidence that would be relied upon at the hearing of the appeal. That bundle necessarily contained no expert's report - but it also failed to include a witness statement from the Appellant's wife. In the event no expert report has ever been filed or served, but on Thursday 10 May 2018, without any prior warning the Appellant filed and served (by now out of time) a witness statement from his wife dated 9 May 2018. In this statement she asserted (inter alia);
i) that she had been granted refugee status by the Respondent upon entry to the UK,
ii) That she had met the Appellant when she attended a house church in Eritrea in 2003, that she knew his family and that they lived in Eritrea too, and that she had married him in Eritrea in 2004
iii) That the Appellant had been the subject of compulsory conscription two weeks after their wedding, and that they had not seen one another again until they met by chance in Greece in 2009
A witness statement from the presenting officer who attended the appeal hearing was offered as evidence in support of the Respondent's application for permission to appeal. Its content was not challenged by the Appellant in the form of any Rule 24 Reply. Nor has it been challenged with any evidence from either the Appellant or the representative who attended the appeal hearing. Ms Cleghorn accepts therefore that I may proceed on the basis that its content is accepted.
Although neither his decision nor his record of proceedings make any reference to it, it is therefore common ground that when the appeal was called on for hearing the Judge was faced with a dispute between the parties. The Respondent's position was that if the late evidence of the Appellant's wife was to be admitted, then in fairness the Respondent should have a fair opportunity to consider the material that would be found upon her file. That required obtaining the file from storage (which could not physically have been done in the time frame afforded to the Respondent by the Appellant's representatives), due reflection upon its content, and thus the impact its content might have upon the credibility of the evidence offered by the Appellant, allowing adequate time for the preparation for the cross-examination of the witnesses in the light of it. In other words, the Respondent sought a consequential adjournment if this evidence was to be admitted notwithstanding the Appellant's failure to comply with directions, and the failure to offer any reasonable excuse for that failure. The alternative was no doubt, to refuse to admit the late evidence on the basis the Respondent was being ambushed.
The Judge's response to that application was blunt, and simple; the appeal had been adjourned for three months already, and it would not be adjourned by him again. No further reasons were offered [Ms Charles #7]. That judicial stance was regrettable. It demonstrably failed to engage with the reasons that had been advanced to him for the Respondent's application. In my judgement it rendered the hearing that followed procedurally unfair. It is theoretically possible the Judge persuaded himself that because the presenting officer had been able to obtain from the Respondent's computerised records a note of the case worker's reasons for the decision to grant refugee status to the Appellant's wife, an adjournment of the appeal would serve no purpose. If so, then he had a duty; (i) to explore with the Respondent whether that was accepted as a complete answer to the late service, and the ambush, (ii) to recognise that this note was unlikely to be a complete record of all of the information that might be contained in the physical file that had not yet been retrieved from storage, and, (iii) to explore with the presenting officer when she had been able to obtain this note, and what preparation time she had been able to enjoy since she had done so. It is not suggested that any of that occurred. Nor was this offered as a reason for the refusal of the application.
Before me Ms Cleghorn accepts that the Judge did fail to offer a reason for the refusal of the adjournment application that engaged with the reasons advanced by the Respondent for it. She accepts that the Judge fell thereby into error. Faintly she advanced the proposition that this might not have amounted to a material error, but was unable to articulate why that would be the case. I am satisfied that there is no substance to that proposition.
In the circumstances, the Respondent has made out his case of procedural unfairness, and the only proper course is that the appeal should be remitted for hearing afresh. None of the findings of fact made by the Judge are safe, or can be preserved. In circumstances such as this, where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the parties of the opportunity for their case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 13 November 2014. Moreover the extent of the judicial fact finding exercise required is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 13 November 2014.
To that end I remit the appeal for a fresh hearing by a judge other than First tier Tribunal Judge Hillis, at the North Shields Hearing Centre. An Amharic interpreter is required. Since the Respondent wishes to place before the Tribunal material contained in the file maintained upon the Appellant's wife, he must file and serve a supplemental bundle by 5pm 22 February 2019. If so advised, the Appellant must in turn file and serve any additional evidence he wishes to rely upon in response by 5pm 8 March 2019. Such documents should be filed with the Tribunal at the North Shields Hearing Centre.
Subject to the directions above, the listing will be expedited, and will be heard on the first available date after 8 March 2019. The parties should expect the appeal to called on for hearing thereafter at short notice.
Notice of decision

1. The decision did involve the making of an error of law sufficient to require the decision to be set aside on all grounds, and reheard. Accordingly the appeal is remitted to the First Tier Tribunal for rehearing de novo, with the directions set out above.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 8 February 2019
Deputy Upper Tribunal Judge J M Holmes