(Immigration and Asylum Chamber) Appeal Number: PA/00745/2019
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 10 March 2020
On 05 June 2020
THE HON. MR JUSTICE LANE, PRESIDENT
MR C. M. G. OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE CRAIG
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr M Aslam, instructed by F A Legal Solicitors.
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer.
DECISION AND REASONS
1. This is an unusual appeal, as can be seen by Judge Macleman's reasons for his grant of permission:
"1. Counsel appears to have taken an extraordinary approach:
(a) Encouraging the appellant to sack representatives who had instructed her, and to instruct other representatives;
(b) Withdrawing from representing the appellant, and leading him to conduct his own hearing;
(c) Remaining in the hearing room to observe proceedings, and to keep a note - plainly with a view to resuming representation, in light of -
(d) Preparing extensive grounds of appeal, submitted with an application in which the appellant says he has no solicitor or other representative.
2. The appellant was unexpectedly deprived of representation. Arguably, through no fault on his part or on the part of the judge, he may have been deprived of a fair hearing.
3. Parties are expected to refer the UT to the relevant code of conduct, and any case law."
2. The appellant is a national of Pakistan, born in 1983. He came to the United Kingdom in February 2010. On application, he was granted leave to remain as a student, and, following extensions, that leave was due to expire on 30 November 2015. In December 2014 his leave was curtailed so as to expire on 6 September 2015. Since then, he has had no leave.
3. On 16 April 2016 he was found in the United Kingdom in the company of a person whose immigration status was being investigated. He was detained and questioned. Two months later, on 13 June 2016, he claimed asylum. He was invited for an interview but failed to attend and his claim was treated as withdrawn. He remained in the United Kingdom and made further submissions on 5 September 2018 with the assistance of solicitors, Bespoke Solicitors. He was invited for an interview, and both he and the solicitors were given the date. He failed to attend. The solicitors were contacted on 2 and 13 November and invited to provide reasons for the non-attendance: they provided no reply. The appellant's claim for asylum was considered on the basis of the material provided in writing, and refused on 10 January 2019.
4. The basis of the appellant's claim is that he, like most of his family, supported the aims of the MQM in the elections of 2008 and subsequently. He said that he was arrested twice, once in November 2008, when he was held overnight and released without charge after his father paid a bribe, and once in May 2009 when the authorities were looking for someone with the same surname who they believed had undertaken terrorist training in India. On that occasion he was beaten and suffered injuries which required treatment in hospital. He was not under guard in hospital and was discharged after about a week. He came to the United Kingdom on his own passport. In 2013 he returned to Pakistan for a family wedding. He said that the police became aware that he was in Pakistan and that a bribe was paid to enable him to pass through the airport to return to the United Kingdom.
5. There is some medical evidence. A rule 35 report provides support for the appellant's account of his ill-treatment during his second arrest. He has had treatment for an injured knee in the United Kingdom. There is evidence of psychiatric intervention in the period up to the time of his most recent claim. The diagnosis is of anxiety, depression and subclinical PTSD. A letter of 25 June 2018 records that he had not been engaging with the therapy he was offered. He had no plans to kill himself and, as his consultant put it, "would rather like to keep himself busy". His dose of Sertraline was increased to 150mg once daily. The grounds of appeal against the Secretary of State's decision, drafted by solicitors and submitted on 25 January 2019, append no more recent medical evidence, and do not make any reference to any existing medical problems as a reason why the appellant's appeal should succeed.
6. In preparation for the hearing before the First-tier Tribunal, Bespoke Solicitors, still representing the appellant, took a witness statement from the appellant. It is dated 20 February 2019 and runs to 128 paragraphs, setting out the appellant's case in detail. This does refer to the appellant's mental health, in the following terms:
"102. Upon my release from detention, I have been able to get the support I have needed for the problems I have ignored and pretended did not exist. I am currently receiving mental treatment for my mental health, which has to be managed on a day by day basis.
103. I have also spoken to the psychiatrist of my fears and how they affect me on a daily basis, evidence of which can be found on the papers attached herewith."
7. The only medical evidence actually attached is the rule 35 report, dated 11 June 2016. There, the examining doctor's conclusion is that the appellant may have been the victim of torture: there was no concern about suicidal intentions or that his health would be injuriously affected by continued detention or any conditions of detention. The report contains the additional self-reported information that before leaving Pakistan the appellant had spent a period of time in rehabilitation because he was smoking cannabis.
8. At the hearing, the appellant was represented by counsel instructed by Bespoke Solicitors. We shall refer to counsel as "Ms X". The appellant attended, in order to give oral evidence. The respondent was represented by a Presenting Officer, Ms M Dogra.
9. What happened at the beginning of the hearing is recorded as follows in Judge Davison's decision:
"2. I made some general introductions and explained what was going to happen to the Appellant with the assistance of the Tribunal interpreter. The Appellant confirmed that he understood the interpreter and that they were speaking in Urdu.
3. The Appellant's representative then made an application to adjourn. She stated she had only been instructed on Saturday the 23 February. She believed the Appellant's bundle was "woefully inadequate" and in her opinion having tried to take instructions from the Appellant he required a psychiatric report or assessment. Although she did indicate her Urdu was not particularly fluent. She indicated she may, given more time, be able to get the Appellant to change representatives and the state of readiness of the appeal was not the Appellant's fault. The Home Office opposed the application highlighting that a detailed witness statement had been recently taken and provided and there was nothing in the medical evidence provided to state that the Appellant was not fit to give evidence. The latest medical evidence (at page 43) indicated that the Appellant had anxiety and depression.
4. I refused the application to adjourn but stood the matter down to give the Appellant's representative more time to take instructions.
5. When the hearing was resumed the application to adjourn was renewed. The Representative stated, although she is not medically qualified, in her opinion the need for a psychiatric report was "imperative". She stated that chambers works with many doctors and "we could give an undertaking for a 6 - 8 week turnaround". She stated that without the adjournment the Appellant would not get a fair hearing and so she would withdraw from the appeal but sit at the back of the Tribunal to take note.
6. I asked about the witness statement and it was confirmed by [Ms X] that those instructed had managed to obtain all this evidence in a one hour conference with the Appellant utilising an interpreter. I found it to be of note that the witness statement was, substantively, 10 pages long and quite detailed (pages 2-12 of the Appellant's bundle). The fact that this much information was gathered in such detail from the Appellant in such a short period of time did not suggest issues with giving instructions or understanding questions posed of him.
7. I asked why those instructed had not sought to obtain a psychiatric report, the response was the solicitors believed "medical evidence would not assist the situation".
8. Ms Dogra for the Respondent again opposed the application.
9. I asked the Appellant's representative why she would withdraw from representing the Appellant if she was not given the adjournment she sought. I was informed "it would be unfair without a psychiatric report and so I would withdraw. It would be unfair so I cannot be part of that". I indicated that it appeared that [Ms X] was seeking to bind the hands of the Tribunal by stating either adjourn or I will withdraw. She then stated "I made a mistake in saying I would leave if the adjournment was unsuccessful".
10. I decided to adjourn, I had in mind the decision of Nwaigwe (adjournment: fairness)  UKUT 00418 (IAC). Fairness is what is required in assessing whether to adjourn.
11. The Appellant had produced a very detailed statement with the assistance of an interpreter shortly before his hearing. [Ms X] is not medically qualified and stated that her Urdu was not fluent. The medical evidence produced did not suggest the Appellant was unfit to give evidence, his own instructed solicitors did not appear to believe his medical issues were of concern. With the overriding objective and "fairness" in mind I proceeded to hear the appeal. I kept in mind that the position may change during the course of the hearing, but nothing happened during the course of evidence or submissions that gave me any cause for concern.
12. Upon announcing my decision on this preliminary matter [Ms X] elected to withdraw from the appeal and take a note from the back of the Tribunal as she had earlier indicated she would. Although within her rights to do this I found this to be a strange decision. On her account the Appellant is so vulnerable that it is "imperative" that a psychiatric report be obtained and in the absence of one it would not be possible to have a "fair" hearing, yet she chose to withdraw her services from the Appellant. However, this is the decision she elected to make, she played no further part in the proceedings"
10. The appeal file contains a full note by the judge of the submissions made to him by Ms X and Ms Dogra. In addition to what is in the decision it records two final exchanges, in which Ms X confirmed that she had not sought to discover why the appellant had not attended his interview, and that she was unable to say why, at this stage, an asylum interview would assist: her final submission was that whether such an interview would assist was "a secondary question and maybe a psychiatric report would assist the Tribunal".
11. The adjournment having been refused, the judge proceeded to hear the appeal. Paragraph 13 of his decision is headed "Checks on Vulnerability" and is as follows:
"13. At the outset of the hearing I indicated to the Appellant that I was aware of his medical history and if he needed a break or was at any point confused about the proceedings he should bring this to my attention. During the course of the hearing at no point did I feel as if the Appellant was either confused or unaware of what was going on. He answered all the questions asked of him directly. Sometimes further clarification was needed, but he provided the same. After he had been cross examined for a little while I offered him a break which he took. He came back after 10 minutes and confirmed he was content to proceed. When the Respondent was making submissions I invited him to take a note of any points he disagreed with. He did this and gave submissions in rebuttal which made perfect sense."
12. Paragraphs 16 and 20 are as follows:
"16. As the Appellant was now representing himself I again explained the process to him. I reassured him that if he did not know the answer to a question he could just say that. I took him to his witness statement, he confirmed that he recalled making the same and that it did set out all the reasons why he was seeking asylum. He confirmed that he was on medication, but that he was happy to be asked questions. I stated if that changed he should let me know.
20. At the end I asked the Appellant is there anything further he wished to add, he stated no. He also confirmed that he had understood the interpreter. I had not noticed any issues with interpretation and none were brought to my attention by the Appellant or the Tribunal interpreter during the course of the proceedings."
13. The judge's decision contains an analysis of the evidence before him. He accepted that the appellant supported the aims of MQM, but noted that in that respect he was no different from other members of his family, who "live and work in Karachi without apparent difficulty". He accepted that the appellant had been detained twice. The first, in the judge's view, was attributable to nothing more than that those who arrested him were able to obtain a bribe for his release; on the second occasion there was an explanation for the arrest, (the police were looking for a terrorist of the same name) and the appellant's subsequent release demonstrated that he was not of interest to the authorities. He regarded the appellant's assertion that his father was able to discover every time a warrant was about to be executed against him as he moved around the country as implausible and incredible. He did not accept that the appellant was of interest during his visit to Pakistan in 2013; in particular he did not accept that he had come to be of risk because a family member had reported him to the police as an MQM supporter now in the country, because again that would apply to many other members of his family.
14. The judge sums up his decision on the asylum claim as follows:
"30. In summary whilst I accept that the Appellant has some sympathies with the aims of MQM and whilst he has unfortunately been detained on two occasions by the authorities in Pakistan I find he would not be of any interest to them should he be returned. I find he has never been charged and it is highly unlikely any record of these detentions even exists, if such a record does exist it clearly does not indicate anything of an adverse nature otherwise the Appellant would have been identified upon his departure, return (or subsequent exit) from the country."
15. The judge went on to deal with the medical evidence. He refers to the various reports, including the rule 35 report. His conclusions on the human rights grounds are as follows:
"33. ? I do not find the Appellant's health condition to be so severe that the threshold of Article 3 or 8 is met. The Country information cited by the Respondent in paragraphs 33ff of the refusal does not paint a glowing picture of mental health services in Pakistan, but it notes "Medication can be bought easily" and "anti depressant drugs" including Sertraline are available. Further, it notes there are 5 mental health hospital, 344 residential care facilities and 654 psychiatric units. Having balanced the nature of the Appellant's mental health issues and the treatment he receives, with the services available in Pakistan I do not find the threshold of Article 3 or 8 is met.
34. Apart from the mention of an Uncle in the Rule 35 report there is no mention of family, a partner or children in the UK. I find the Appellant does not have a family life in the UK.
35. The Appellant came to the UK in 2010 as a student, for the majority of the last 9 years he has been in the UK and I find he will have developed some private life over this period of time. However, he is a long way short of the 20 years required under the Rules to found a claim. I do not find that removing him from the UK would disproportionately interfere with his private life. He has studied in the UK and these studies would be of assistance to him in re establishing himself in Pakistan. He has extensive family members in Karachi, including his parents. The vast majority of them are MQM supporters. Should the Appellant wish to continue with his support I find he would be able to do so and there would be no restrictions on his private life any more than there is on his family members. The medication he is taking is available in Pakistan. There is nothing exceptional about his appeal that would merit a grant of leave outside the Rules."
16. Thus, the judge dismissed the appellant's appeal.
17. The grounds of appeal against that decision were, as Judge Macleman noted, drafted by Ms X. When submitted to the First-tier Tribunal, the appellant was still represented by Bespoke Solicitors, so the comment that they were prepared in circumstances in which the appellant claimed to have no representative is, to that extent only, incorrect. Following refusal of permission by the First-tier Tribunal, however, the grounds were redrafted to include a reference to that refusal. The redrafted grounds are again signed by Ms X. They were submitted by the appellant purportedly acting in person, on 7 May 2019. The grounds in summary are that the determination is vitiated by "(1) failure to adjourn; (2) failing to correctly apply 339K of the Immigration Rules; and (3) failing to correctly consider article 3 (risk of suicide). The submissions relating to the first ground begin as follows:
"6. It is respectfully submitted that the learned FtTJ fell into procedural irregularity by failing to adjourn to allow the Appellant to obtain psychiatric evidence. This was despite two applications made by Counsel, who further had to withdraw from the hearing due to the unfair nature of the hearing, and concerns over the appellant's ability to give reliable evidence. It is further submitted that refusal to adjourn impeded the Appellant's ability to sufficiently discharge the burden of proof on his standalone article 3 claim."
There follow references to Ngaigwe  UKUT 418 (IAC), SH (Afghanistan) v SSHD  EWCA Civ 1284, the Presidential Guidance Note (1 of 2014), and R v Kingston upon Thames JJ ex parte Martin  Imm AR172. In each case extracts are set out, sometimes with underlining, but without any reference to the way in which the principles to which the grounds allude might have reference to what actually happened in the present appeal. This ground concludes:
"It is submitted that in not granting the adjournment, despite Counsel's application and the medical evidence at Page 43 of the Appellant's bundle stating that the Appellant was suffering from anxiety and depression, the learned FtTJ has fallen into material procedural and legal error."
18. In relation to ground 2, the grounds assert that the judge "failed to take into account a key tenet to the asylum law in the United Kingdom", and "fell into a grave material error of law". The error asserted is as follows. The judge should have appreciated that the persecution the appellant had already suffered would be repeated if he returned. Paragraph 339K and article 4 of the Qualification Directive (2004/83/EC) were to that effect. The second arrest went some way to show the risk of further persecution.
19. In relation to ground 3 and article 3, the grounds set out references to J v SSHD  EWCA Civ 629 and Y (Sri Lanka) v SSHD  EWCA Civ 362, again without any reference to the actual facts of the case, but under the heading of an assertion that the appellant's article 3 claim was insufficiently and incorrectly considered, and that the learned judge "may have fallen into this error partially due to the previous error of declining to adjourn for further and more comprehensive medical evidence from a consultant psychiatrist". In ground 3 Ms X also points out that it is possible to be successful on an article 3 claim whilst unsuccessful on an asylum claim and that it was "a grave material error of law to not consider article 3 within its full and proper legal framework".
20. The grounds are not accompanied by any further evidence, nor has there at any stage been any application to adduce further evidence.
21. At the hearing before us, the appellant was represented by F A Legal Solicitors. In view of the history of this case, it is particularly unfortunate that those solicitors had failed to provide any proper notification that they were acting. There was an email from what appeared to be the private email address of a member of the firm, but the solicitors had not gone on record in the way required by the procedure rules. We had to adjourn for a short period of time in order to enable Mr Aslam to confirm that he was properly instructed. Mr Aslam did not seek to defend Ms X's conduct. He did not seek to call her as a witness. He was unable to explain the basis upon which she had drafted grounds to support an application made by an unrepresented appellant. The best he could do was to say that the appellant had been "certainly prejudiced" by Ms X's conduct. He did not argue under this ground that the judge had been at fault in any way.
22. Turning to the substantive grounds, Mr Aslam based his submissions on the fact that the appellant had been arrested twice. The country evidence showed that there were "arbitrary" arrests. There was material on which the judge could have found that the appellant's difficulties arose from his being an MQM supporter: the judge had erred by failing to take into account the country evidence relating to the risk to such individuals. In relation to article 3, Mr Aslam simply accepted that the matter was not raised in the grounds of appeal to the First-tier Tribunal.
23. Mr Deller submitted on ground 1 that a hearing could not be automatically regarded as unfair because a representative refused to take part. The judge had decided that there was no basis for adjournment, and then proceeded appropriately during the hearing. In doing so he had taken into account not only the application made by Ms X but the Home Office's opposition to it. In order to succeed on this ground, Mr Aslam would have to show that the judge's decision was perverse. So far as concerns ground 2, Mr Deller's submission was that paragraph 339K, on which the grounds were based, had no application. The grounds ignored the fact that the judge had found, on the evidence, that neither of the appellant's arrests had any link to a Convention reason. To that extent the ill-treatment was not "persecution". So far as concerns suicide risk, the medical evidence had been taken into account. There was nothing suggesting an enhanced risk of suicide. There was nothing in the original grounds of appeal that ought to have caused the judge to take this into account. So, in Mr Deller's submission, there was no unfairness, no issue under paragraph 339K, and no error in the failure to deal with a risk of suicide. Mr Deller concluded his submissions by saying that "really, there is no reason for a representative to take no active part and then complain".
24. Mr Aslam made no submissions in reply.
25. Judge Davison was faced with a member of the bar who had taken it upon herself, despite having no known psychiatric qualification and having difficulty in communicating with the appellant because of her limited competence in Urdu, to decide not merely that the appellant ought to have a further opportunity to provide a substantive account of his claim, but also that he suffered from a mental disorder preventing him from having a fair hearing at the time fixed for it and on the evidence then available. There was no material supporting either of those assertions. The appellant had had many years to give his own account of his case to the Secretary of State if he wished to do so: he had given a full account of his case to his solicitors only a few days previously. His solicitors had represented him for several years, and had not raised the issues now raised by counsel. He had had medical attention for many months, and nobody had previously suggested what counsel was now suggesting.
26. It is not easy to see any proper basis upon which the judge could have granted the adjournment Ms X sought. There was no good reason to suppose that her view was to be preferred to those of the professionals who had represented, and who had looked after, the appellant: as she acknowledged, she herself had been acquainted with the appellant and his case for only two days. The lack of substance in Ms X's submission is underlined by the fact that neither at the time when grounds of appeal to the First-tier Tribunal were submitted, nor subsequently, has there been any suggestion that the appellant's mental condition is other than that portrayed by the documents available to the judge, indicating anxiety and depression, apparently controlled by drugs, and no more serious condition needing attention.
27. The authorities cited by Ms X in her grounds do not assist the appellant. Ngaigwe emphasises that the crucial question is whether the judge's decision on the adjournment request deprived the appellant of a fair hearing. That case cites SH (Afghanistan), which dealt with a very different situation where, first, the application was in relation to specific evidence which would have enabled the appellant to show by positive evidence that the case against him was wrong, and, secondly, where the appeal was supported by production of the evidence in question, which had not been available to the First-tier Tribunal judge who had refused the adjournment. The paragraphs cited from the Presidential Guidance Note are 8(c) and 9. Paragraph 8(c) indicates that one of the factors weighing in favour of an adjournment even at a late stage is:
"Where further time is needed because of a delay in obtaining evidence which is outside the parties' control, for example, where an expert witness fails to provide a report within the period expected."
Paragraph 9 reads as follows:
"9. The following factors, where relevant, may weigh against the granting of an adjournment.
(a) The application to adjourn is not made at the earliest opportunity.
(b) The application is speculative, such as, for example, a request for time for lodging further evidence where there is no reasonable basis to presume that such evidence exists or could be produced within a reasonable period.
(c) The application does not show that anything material would be achieved by the delay, for example, where an appellant wants more time to instruct a legal representative but there is no evidence that funds or legal aid is available.
(d) The application does not explain how the reason for seeking an adjournment is material to the case, for example, where there is a desire to seek further evidence but this evidence does not appear to be material to the issues to be decided.
(e) The application seeks more time to prepare the appeal when adequate time has already been given. In such circumstances, the Tribunal may take into consideration a failure to comply with directions. However, a failure to comply with directions will not be sufficient of itself to refuse an adjournment."
28. In the context of this case, paragraph 8(c) does not assist the appellant, and, bearing in mind the speculative nature of the application and the appellant's history, point against the granting of an adjournment.
29. Neither the law nor the material placed before the judge by Ms X (which consisted, in reality, solely of her own assertions) provide any reason at all for a conclusion that the judge was not entitled to take the decision he did, which was that an adjournment should not be granted. Following his refusal of an adjournment he took all the appropriate steps to ensure that the appellant had a proper opportunity to tell his story and although Ms X was observing the proceedings she did not assert in her grounds that the hearing that actually took place was not, in the end, an entirely fair one. In reality her grounds are limited to saying that because her application did not succeed it follows necessarily that the hearing was not fair. That position is, in our view, wholly untenable. We reject ground 1.
30. So far as concerns ground 2, it was for the judge to determine the facts on the basis of the evidence placed before him. He did that. We agree with Mr Deller that paragraph 339K did not apply if the appellant's ill treatment was not the result of, or motivated by, his support of MQM. The judge's treatment of the evidence before him is not the subject of any specific ground of appeal, nor could it be. The evidence adduced by the appellant, both in the calm of his solicitor's office and in the hearing, was wholly insufficient to demonstrate that he had a well-founded fear of persecution.
31. So far as concerns the ground based on article 3, the position is, as Mr Deller pointed out and as Mr Aslam had already accepted, that the grounds of appeal to the First-tier Tribunal against the respondent's decision, prepared professionally and by solicitors who had been acquainted for a considerable time with the appellant's case, do not raise that argument. We doubt whether, in the circumstances, it can be regarded as 'Robinson obvious': there might have been some room for complaint if the medical evidence before the judge had raised matters which needed inquiry, but it did not. The judge dealt properly with the medical evidence, noting the appellant's conditions and his requirements, and reaching legitimate conclusions about their impact on the appellant's removability.
32. For the foregoing reasons we dismiss this appeal.
33. Ms X's conduct, both during and after the appeal hearing, raises considerable ground for concern. We cannot see any basis for saying that counsel was entitled to treat herself as the decision-making body on the question whether an adjournment should be granted. As the servant of justice she was obliged to ameliorate any unfairness or injustice she thought might happen, by presenting the appellant's case. Whether or not she was entitled to suggest, as she appears to have done, that the appellant should dispense with the services of his firm of solicitors, is a matter to which attention may need to be given by others.
34. The grounds of appeal that she drafted raise further cause for concern. First, there is the question of the professional capacity in which she was acting on 6 May, when the renewed grounds were signed and were apparently made available to the appellant who was acting in person. Secondly, the very fact that they raised what is described as the "stand alone article 3 claim" emphasises the very serious nature of Ms X's conduct at the hearing. It appears that she thought that there was such a claim, although she must have been aware that it was not raised in the grounds. Yet she did not seek, at any stage, to seek an amendment of the grounds to ensure that the judge took into account this claim, not previously made. That cannot be characterised as other than a breach of her duty both to the Tribunal and to the appellant. Although we have decided that there was no evidence to support that claim anyway, that is not to the point: if she thought the judge should have been dealing with that point she should have sought to amend the grounds.
35. It is further of concern that the grounds as presented fail to deal with the case. As we have pointed out, ground 1 entirely fails to explain the basis upon which it could properly be said either that the judge should have granted the adjournment or that the subsequent hearing bore any marks of unfairness. Ground 2 simply ignores the judge's findings and seeks, without even expressing any basis for doing so, to reargue the case on the evidence; ground 3 wholly ignores both the evidence and the procedural aspects of the case. These grounds of appeal ought not to have been presented by any competent member of the bar.
36. Ms X's conduct has, for no discernible good reason, considerably delayed the resolution of the appellant's case. It raises concern about her performance of her professional duties. Those matters are not primarily for us, but for the Bar Standards Board. So far as the appeal is concerned, for the reasons we have given, we dismiss it.
C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 7 May 2020