Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01268/2020
UI-2021-001097

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 25th February 2022
On the 16 June 2022

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

OLUWASEUN EZEKIEL OMISORE
(Anonymity Order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Ms H. Gilmour, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Cary sent on 7 September 2021 dismissing his appeal against the decision dated 8 January 2020 refusing his protection claim and human rights claim.
Permission to appeal
2. Permission to appeal was granted by First-tier Tribunal Judge Aldridge on 1 December 2021 in the following terms:
1. This is an in-time application for permission to appeal, the grounds of appeal are that the judge has erred by failing to adjourn the substantive hearing on 25 August 2021 and proceed with the matter, despite the appellant having contacted the tribunal by email explaining that he was facing difficulties in respect of obtaining legal representation and medical evidence.
2. Whilst the judge has carefully considered the merits of the application to adjourn, and the history and failures of the Appellant previously, it is arguable that the decision to proceed with the hearing of the unrepresented appellant may not have been fair in the circumstances of this matter. It is apparent that the appellant had made contact to ask for an adjournment previous to the hearing.
3. The grounds disclose an arguable error of law.
3. We were not provided with a Rule 24 response from the Respondent but were given an indication at the hearing that the appeal was resisted.
Error of Law
4. At the close of the hearing, we indicated that we reserved our decision which we now give. We are satisfied that the decision contained material errors of law, such that it should be set aside.
5. The Appellant’s grounds were drafted by solicitors whom agreed to act on his behalf on this sole occasion given that they do not undertake legal aid work and the Appellant claims to have insufficient funds to instruct solicitors privately.
6. The ground of appeal is that there was procedural unfairness. The Appellant had applied to adjourn the hearing prior to the hearing enclosing evidence that he had attempted to obtain representation without success. That application went unanswered, and the hearing was listed which is why the application to adjourn was renewed at the hearing before the judge. At the hearing, which was held remotely, the judge did not have before him the application for the adjournment nor the supporting documents. It is also said that the judge failed to take into account the attempts made by the appellant to seek representation and failed to take into account the effects of Covid in his ability to seek representation combined with his mental health problems. Further on the day of the hearing the appellant said he was not well. For these reasons, the Appellant submits the refusal to adjourn was unfair and unlawful and he should have been given further time to instruct legal aid solicitors and prepare his case.
7. Ms. Gilmour submitted that it was open to the judge to refuse to adjourn and proceed with the hearing. The judge applied the correct principles. The judge set out the history in some detail pointing to the fact that the appeal hearing had previously been adjourned twice; on 5 May 2021 and on 2 July 2021, noting that on 2 July 2021 IJ Bennett issued directions which the appellant had made “no realistic attempt to comply with”.
8. We note that the judge was of the view that the appellant had done nothing in response to the directions of IJ Bennet. We were hampered by the absence of those directions. Neither party had them and they did not appear on the digital file.
9. The appellant is adamant that he responded to the directions and provided evidence that he had unsuccessfully sought assistance from legal representatives. He has since provided at least two emails dated 17 August 2021, one from Hackney and Fulham Law Centre in which they indicate that they could not take on his case and one from Duncan Lewis Solicitors informing him that they have no capacity. He asserts that he sent these to the Tribunal in response to the directions. He has also provided other emails dated early 2020 in which he was given quotes for legal work. We are satisfied that for whatever reason (which could have been administrative) that the judge was not aware that the appellant had responded to the directions with evidence and requested more time. In our view it is manifest at [15] and [26] that the judge placed considerable weight on the appellant’s failure to respond to the directions or provide evidence that he had sought legal advice. It is due to this unforced error that the consideration of the application to adjourn is thus incomplete and would give the impression of unfairness to the lay, unrepresented appellant.
10. Had the judge had this material before him, the judge may have formed a different view of whether it was fair to adjourn the appeal. We make no criticism of the judge in this respect. The hearing was held by CVP during the pandemic and the file was a digital one. There was inevitably administrative disruption. The appellant has not assisted matters. His uncle’s evidence was that he is disorganised.
11. At [28] the judge makes it clear that although deciding not to adjourn, that he would review this decision at the end of the hearing. He then went on to hear the appeal and reconsidered the issue at [41].
12. The appellant had provided some evidence of his mental health difficulties which are referred to by the judge at [27] and [48]. At the very least, that evidence pointed to the appellant suffering from anxiety with depression and being very vulnerable. One of his side effects was said to be poor concentration. It was also said that he had been sent for an early intervention scheme “follow up”. On the day of the hearing the appellant stated that he was not well and needed medical help. The appellant’s mental health was also corroborated by his uncle according to the record of proceedings.
13. In our view this was sufficient evidence for the appellant to be treated as a vulnerable witness but there is no recognition of this in the determination or any consideration of what reasonable adjustments were necessary. Given that the Appellant presented as a vulnerable witness and in the context of a protection claim where he had not yet put forward a bundle of evidence to support his claim, we are fortified in our view that the consideration of the evidence of attempting to instruct solicitors by a vulnerable litigant in person may well have tipped the balance in favour or adjourning the hearing had the judge been alive to this application and supporting evidence.
14. In light of the above, we are satisfied that the decision of the First-tier Tribunal contains a material error of law and that the decision should be set aside in its entirety.
15. We have formed the view that this matter should be remitted to the First-tier Tribunal to be heard de novo with no findings preserved owing to the nature of the error.
16. For the benefit of the First-tier Tribunal, we record that the Appellant relayed to us that he had made contact with Shawstone Solicitors, which had not refused to take on his matter but merely needed more time to perform an assessment of the Appellant’s circumstances and his eligibility for legal aid before it could take on his matter. We also informed the appellant that his appeal will not be deferred indefinitely and that the Tribunal has expertise in dealing with litigants in person. We also pointed to the fact that the pandemic is now over and that it is for the appellant to seek medical attention.
17. The Appellant should be under no illusion that because the refusal to adjourn the appeal has been found to be unlawful on this occasion, that any future decision to adjourn will necessarily be unlawful.
18. It is a trite observation that any future Tribunal will need to take into account the appellant’s vulnerability, consider what reasonable adjustments are necessary, make a forensic assessment of all documents provided and the viability of the appellant ever obtaining legal aid in terms of documenting his means and the merits of his appeal.
Anonymity order
19. Since we have not disclosed the nature of the appellant’s claim for asylum in this decision, we have not found it appropriate to make an anonymity order. The First-tier Tribunal when hearing the appeal de novo will need to consider whether it is appropriate to make an anonymity order in line with the current guidance.
Notice of Decision
20. The decision of the First-tier Tribunal involved the making of an error of law.
21. The decision is set aside in its entirely with no findings preserved.
22. The appeal is to be remitted to be heard de novo by the First-tier Tribunal by a judge other than Judge Cary.

Signed Deputy Upper Tribunal Judge Saini

Deputy Upper Tribunal Judge Saini Date 21 April 2022