Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00519/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On October 18, 2016
On October 19, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MISS LENA JULIAMAREIKER AMENOPE FUMEY
(NO ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant Mr Olorunfemi (Legal Representative)
For the Respondent Ms Aboni (Home Office Presenting Officer)

DECISION AND REASONS

1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

2. The appellant is a national of Togo. On March 25, 2015 the appellant entered the United Kingdom on a visit visa valid until July 28, 2015. On May 22, 2015 she claimed asylum. The respondent refused her application in a decision dated June 30, 2015.

3. The appellant appealed that decision on July 14, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and her appeal came before Judge of the First-tier Tribunal M Davies (hereinafter referred to as "the Judge" on April 14, 2016. In a decision promulgated on May 5, 2016 he dismissed her claims.

4. The appellant appealed the Judge's decision on May 19, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Parkes on June 1, 2016. He found that it was arguable, given the fact the appellant was unrepresented, the Judge's decision to proceed without an interpreter when one had been booked was incorrect.

5. The matter initially came before me on the above date and on that occasion I heard submissions from both representatives. I reserved my decision.

SUBMISSIONS

6. Mr Olorunfemi adopted the grounds of appeal and addressed me on a number of grounds. His primary submission was the Judge erred by dealing with the appeal without an interpreter. Whilst it was not disputed the appellant could speak English it was not her first choice of language and she had been interviewed with an interpreter at her asylum interview. The Judge referred in paragraph [27] of his decision to telling the appellant she could refer to an interpreter when one was not there. The Judge's approach was both unfair and unsafe.

7. Ms Aboni adopted a Rule 24 response dated June 16, 2016. She referred me to her colleague's note from the hearing in which it had been recorded that the appellant was happy to proceed without an interpreter. She argued that if there had been any concerns then either the Judge or the Presenting Officer would have said something.

8. Both parties also addressed me on other issues but I do not address those concerns due to my decision on the primary ground.

DISCUSSION AND FINDINGS

9. In granting permission to appeal Judge of the First-tier Tribunal Parkes identified arguable errors of law on grounds of procedural unfairness.

10. I had the benefit of the Judge's hearing notes and these recorded the fact that when the case was called on at 10am the interpreter, booked by the Tribunal, had not arrived. The matter was quite properly stood down for enquiries to be made at 10.15am. The hearing resumed at 10.30am but there is no record of any discussion between the Judge and the appellant and her father who had also been present save the appellant indicated that she was happy to proceed without a "witness".

11. I am unclear whether the word "witness" was supposed to be interpreter but what is clear is that she used an interpreter at her interview and had requested an interpreter for these proceedings. She was unrepresented and did not have the benefit of any legal advice as to the pros and cons of proceeding without waiting for an interpreter.

12. She may have agreed to proceed but I have to consider that decision against the background that these proceedings were alien to her and as she stated in a recently filed statement that whilst she does understand and speak English she does not do so to the level where she can easily and promptly assimilate information and answer questions to the best of her ability. She stated, "If I was speaking in "Ewe" I will be able to express myself properly and clearly so as to convey my subjective fear".

13. In the circumstances I find there was a procedural unfairness and I set aside the whole decision.

14. In light of this finding I therefore see no need to make any findings on other matters raised.

15. I raised with both representatives where this appeal should be heard in the event there was an error in law. Both agreed that in light of Part 3, Section 7.1 to 7.3 of the Practice Statement the matter should be remitted to the First-tier Tribunal.

16. I direct that any additional evidence should be served on both the Tribunal and other party in accordance with the current Procedural Rules.

DECISION

17. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.

18. The appeal is remitted back to the First-tier Tribunal for these issues to be addressed hearing under Section 12 of the Tribunals, Courts and Enforcement Act 2007.

19. The matter should not be listed before Judge of the First-tier Tribunal M Davies. Ideally, this matter should be listed before myself in the First-tier but I leave that to the listing department to decide if that is necessary.

Signed:

Deputy Upper Tribunal Judge Alis