Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00986/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 26 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

SP
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Dhanji, Counsel instructed by Rashid & Rashid Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The Appellant is a citizen of Trinidad and Tobago, born on 8 February 1980. Her daughter, Ms AP, a minor, is dependent on her mother's claim.
2. In a decision promulgated on 9 August 2016 Judge of the First-tier Tribunal Lloyd dismissed the Appellant's appeal, against the refusal of the Respondent of her application for asylum, on all grounds. The Appellant appeals to the Upper Tribunal with permission.
3. The issue before me was a narrow one. The Appellant contends that the judge's decision at the hearing to refuse Counsel's application for an adjournment was procedurally unfair.
4. The Appellant's representatives indicated (and indeed this was confirmed by the judge at paragraph [6] of his decision) that both Counsel for the Appellant and the Respondent conducted the hearing with reference to a Reasons for Refusal Letter dated 20 January 2016 which contained a concession on the part of the Respondent accepting that threats had been made against the Appellant. However, during final submissions (Mr Dhanji indicated before me it was during the course of his own submissions) it emerged that the judge had prepared the appeal on the basis of a different version of the Reasons for Refusal Letter. This version was also dated 20 January 2016 but in this version the Respondent did not accept that threats had been made to the Appellant. For ease of reference I adopt the same descriptions as adopted by Judge Lloyd where he described the version which did not accept the threats as "version 1" and the version which did accept the threats as "version 2".
5. As already noted, both parties had prepared and made their submissions on the basis of version 2; when this discrepancy emerged the Respondent sought instructions and then indicated that the Respondent was withdrawing version 2 and therefore withdrawing the concession accepting the threats. Counsel for the Appellant then requested an adjournment as the Appellant would not have had an opportunity to obtain evidence in respect of the issue.
6. Judge Lloyd refused that adjournment on the basis that version 1 had been attached to the original appeal made by the appellant and to the Appellant's bundle and it was clear therefore that the Appellant had been in receipt of the correct version, as the judge described it, all along. It was Judge Lloyd's view that Mr Dhanji's instructions could and should have reflected this. In addition, the judge indicated that he had asked the Appellant about the threats during the hearing and was satisfied there was enough evidence to enable him to reach a fair conclusion on the matter. Thirdly in the course of the hearing the Appellant had already said that there was nobody else who could corroborate the events. Fourthly the judge was of the view that the only other likely source of corroboration would be phone records from 2008 and the judge found it unlikely that these would now be available and in any event he was of the view that they were unlikely to be conclusive. The judge also indicated that he offered Mr Dhanji an opportunity to reopen oral evidence on the point but Mr Dhanji declined.
7. Although Mr Kotas initially sought to resist the appeal, he indicated during the course of his submissions that he had been under a misapprehension in relation to the judge's approach. He then conceded that there was a material error of law and that the proceedings had been unfair.
8. I am satisfied that this has to be the case. The president of the Upper Tribunal in Nwaigwe (Adjournment: fairness) [2014] UKUT 00418 sets out that the test and the sole test is whether the decision (not to adjourn) was unfair. I also rely, as set out in Nwaigwe, on the Court of Appeal's opinion in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.
9. Whilst it was not unfair of the judge (and indeed Mr Dhanji did not make this argument) to allow the Respondent to withdraw the concession, I am not satisfied that the Appellant was given a fair opportunity to address what in effect was a material change to her case.
10. Although I have noted the judge's consideration including that the Appellant had prior access to both versions of the refusal letter and that she was asked in oral evidence about the threats, up until that point I accept that it was entirely reasonable that all of her preparation, and that of her representatives, would have been on the basis that those threats were accepted. The judge went on in his findings at [20] and [21] to find the Appellant not credible; he did not accept that the threats were made and largely on this basis dismissed the Appellant's asylum appeal.
11. I am satisfied that the decision of the First-tier Tribunal Judge Lloyd contained a material error of law such that it must be set aside. No findings are preserved. The Appellant has not had an opportunity to have a fair hearing of her case and therefore the appeal is remitted to the First-tier Tribunal to be heard by any judge, other than Judge Lloyd. For the avoidance of doubt it was confirmed before me that the respondent continues to rely on version 1 of the refusal letter which did not accept that threats had been made.
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 their 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: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore no fee award is made.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson