Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
PA/01214/2016

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 13th December 2016
On: 15th December 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Cristina [N]
(no anonymity direction made)
Appellant

And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Aziz, instructed by Bolton CAB
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Angola, born on the 5th July 1969. She appeals with permission against the decision of the First-tier Tribunal (Judge Wellesley-Cole) to dismiss her appeal against a decision to refuse to grant leave to remain on protection grounds.

2. The appeal is brought on the grounds that there was a procedural unfairness in the hearing of the appeal. The point is well summarised by First-tier Tribunal Judge Ford in his grant of permission dated 5th October 2016:

"The Appellant's current representative has stated that the previous representative wrongly advised that the appeal hearing was listed for the 31st August rather than the 30th August and that instructions had been received only days before the bank holiday weekend. It is stated in a witness statement from the representative that the error was not realised until part way through the morning. I can see from the file that he made contact with the Tribunal by fax just after noon on the date of the hearing and made a request for an adjournment.

The ROP does not give start and finish times for the hearing but does state "no show" for the Appellant. Given that the adjournment request was not received until after 12 noon, it is likely that Judge Wellesley-Cole was unaware of the adjournment request as it most likely came in after the hearing was concluded. The hearing had proceeded on submissions only.

Because the Appellant may have been misinformed by her previous solicitor as to the date of the hearing, it is arguable that the request for an adjournment would likely have succeeded had it been made in time and that such conspicuous unfairness to the Appellant has resulted that it arguably amounts to a material error of law".

3. It would seem that there was an unfortunate confluence of events prior to the matter coming before the First-tier Tribunal. In addition to the solicitor making the error as to the correct date, it appears from the file that the notice of hearing dispatched to the Appellant herself was sent to her old address in Islington. She had by that time been moved (by NASS) to address in Bolton. Although the Tribunal had been informed the information had not been placed on the file before that notice was delivered. I agree with Judge Ford's assessment that as a result of timing it is very unlikely that Judge Wellesley-Cole had been made aware of any of this. Mr Bates concurred, and pointed out that the determination expressly records that nothing had been heard from the Appellant or her representatives.

4. In those circumstances the Respondent had no objection to the decision of the First-tier Tribunal being set aside for procedural irregularity, and the matter remitted afresh to the First-tier Tribunal for re-hearing.

Decisions

5. The determination of the First-tier Tribunal is infected by material error of law and it is set aside.

6. The decision is to be re-made in the First-tier Tribunal. I am advised that the Appellant will require a Lingala interpreter and that she intends to give evidence. The appeal should be allocated 3 points.

Upper Tribunal Judge Bruce
13th December 2016