Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01497/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on:
On 16 August 2016
On 25 October 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

shahbaz ali
(no anonymity order)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr R Sharma, Counsel, instructed by Mayfair Solicitors
For the respondent: Mr R Harland, Counsel, instructed by the Government Legal Department

DECISION AND REASONS
Decision and reasons
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's refusal of international protection under the Refugee Convention or humanitarian protection grounds, or leave to remain on human rights grounds.
2. His is one of the lead cases considered by the Court of Appeal in the ETS/TOEIC judgment in Mehmood & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 744. Since the appellant is named in the reported version of that judgment, which is freely available on the internet, I do not consider it appropriate to maintain anonymity before the Upper Tribunal and I discharge the anonymity order made by the First-tier Tribunal.
Background
3. The appellant is a citizen of Pakistan born in 1984, and now 32 years old. The appellant previously lived in Multan, Lahore, and Manwali in Pakistan.
4. He claims to have been a member of Anjamane Sarfaroshane Islam (ASI), a religious group whose spiritual leader is said to be Riaz Ahmed Gohar Shahi (Mr Shahi). His cousin had introduced him to ASI in 1994, when he was 10 years old and still living in Multan City. In 1998, ASI's spiritual leader, Mr Shahi, declared that 'his picture was seen in the moon and the holy stone'. Many other people also declared that they had seen Mr Shahi's picture in the sun, the moon and the holy stone, and also in the Temple in Jamshoro. In September 1998, members of other religious parties brought a blasphemy case against Mr Shahi.
5. On 27 November 1998, the appellant's family home was stoned: he and his family had to move. The police, to whom they reported the event, refused to register a first information report (FIR). The appellant was still studying in Multan, living for part of the time in a college hostel. He experienced many verbal threats while at the hostel. Teachers were unwilling to educate him, people used abusive language to him, and there were signs at the grocery shops indicating that followers of Mr Shahi would not be served.
6. Almost 2 years later, in June 2000, Mr Shahi selected a team of 12 people to organise a peaceful protest. The appellant became involved: he was selected to lead protests in the South Punjab region, and named the Amir of South Punjab. On 12 September in Multan City, he led the first such protest. 60-70 people attended, without any trouble, and the same was the case in other cities.
7. The appellant moved to Lahore in 2000 and stayed there until 2005. He faced no difficulties during this period. The group of people nominated by Mr Shahi reduced during this period, from 12 to 3. The blasphemy case against Mr Shahi remained outstanding but nothing happened.
8. In 2008, the appellant and a colleague petitioned the government of Punjab to change the sentence provided in section 295C of the Pakistan Penal Code and refrain from wrongfully exercising the blasphemy law. The appellant met the Governor of Punjab, Mr Salman Thaseer, who promised to help with the blasphemy laws. The Governor wrote to other religious parties seeking support for the modification of section 295C. The request was not well received. The appellant supported opposition to the blasphemy prosecution and conviction of a Christian, Asia Noreen Bibi. She remains under sentence of death, albeit suspended by the Pakistani Supreme Court.
9. In December 2009, a fatwa was declared against ASI. The appellant began to have difficulties. He was attacked by extremists when arranging a meeting in Lahore, and when the police attended, it was the appellant they arrested. He was released after 3 days' detention. In September 2010, the appellant says that an FIR was registered against him in Lahore.
10. On 4 January 2011, the Governor of the Punjab was assassinated by his bodyguard. In April 2011, when the appellant came to the United Kingdom, purportedly to study, he now says he came to save his life.
11. The appellant entered the United Kingdom on 6 April 2011 as a Tier 4 (General) Student Migrant, with entry clearance valid until 30 December 2013. Before his leave expired, he lodged an application for further leave, which was refused on 7 April 2014, with no right of appeal. The appellant made a judicial review application, which the Court of Appeal dismissed. Permission to appeal to the Supreme Court was refused and his appeal rights were exhausted at the end of July 2015.
12. On 4 January 2016, almost 5 years after his arrival in the United Kingdom 'to save his life', the appellant was detained and claimed asylum. The respondent refused to grant him international protection or humanitarian protection and the appellant appealed to the First-tier Tribunal.
First-tier Tribunal decision
13. At the First-tier Tribunal hearing, the appellant attempted to reopen the ETS/TOEIC issue in an unsigned proof of evidence which he asked to be treated as a witness statement. In that document, he also sought to rely on his private life in the United Kingdom, pursuant to Article 8 ECHR. For the respondent, Mr Kandola objected, stating that the Article 8 claim was a 'new matter' as defined by section 85 of the Nationality, Immigration and Asylum Act 2002 (as amended) and that he did not consent to its introduction in an unsigned statement on the morning of the hearing, which he described as an abuse of process.
14. The hearing was adjourned for a short time for the representatives to seek instructions. Mr Sharma returned to the hearing with an additional document, drafted for the appellant and signed by him, purporting to be a one-stop response under section 120. It was somewhat incoherent:
"[1] Further to the decision in the ETS/TOEIC test case [SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC)] I wish to rely on this ground that my removal from the United Kingdom as the consequence of the dismissal of my appeal would be contrary to my Article 8 right.
[2] I have established a private life in the United Kingdom of the continuation of the private life is being unlawfully denied pursuant to a decision now shown to have no substance.
[3] It is clear that there is no proper evidence of any alleged deception as such my application for further leave to remain on 29 December 2013 was wrongly refused in the decision of the 7 July 2014. ?This decision was not according to law and must therefore failed under Common Law assessment of proportionate interferences with Article 8 rights. ?
[4] [Not relied upon at the Upper Tribunal hearing]
[5] I confirmed that this statement should be treated as a section 120 response pursuant to the Nationality, Immigration and Asylum Act 2002. This statement will be relied upon in my appeal and added to by way of legal submissions."
There was no application by either party for an adjournment of the substantive hearing to enable the respondent to consider the section 120 notice.
15. The First-tier Tribunal Judge found that the appellant was in breach of directions sent to him on 4 March 2016, requiring him to provide a witness statement and any evidence on which he wished to rely, not later than 5 days before the substantive hearing, which the appellant had failed to do. The new grounds had not been raised 'as soon as was reasonably practicable' as required by section 120(5).
16. The First-tier Tribunal Judge accepted that the matters in the section 120 statement were a 'new matter' for the purpose of section 85(6) of the 2002 Act and that their admission required the consent of the respondent, pursuant to section 85(5). That consent having been withheld, he was not seised of the 'new matters' at the protection claim hearing.
17. Mr Sharma and the appellant then withdrew from the hearing, asking the First-tier Tribunal Judge to decide the protection element of the claim 'on the papers', which he did. The Judge found the core account to be a fabrication to avoid removal from the United Kingdom and rejected it entirely. His reasons relied on section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the Judge considered that the appellant had not explained satisfactorily his failure to claim asylum earlier; that the appellant's inability or unwillingness to provide documentary or other corroborative evidence to support his account of events in Pakistan further damaged his claim; and that overall, the core account, including the appellant's claimed membership of the organisation, was not credible or reliable. In particular, he took into account the delay in applying and the appellant's reliance on his notes at the asylum interview.
18. The appellant has not challenged either the asylum or humanitarian protection element of the First-tier Tribunal decision.
Permission to appeal
19. First-tier Tribunal Judge Osborne granted the appellant permission to appeal, on the basis that the section 120 notice arguably did not raise any 'new matter'. Further, the Judge considered that the Tribunal had arguably erred in his approach to Article 8 ECHR, which was considered in the refusal letter and was therefore, arguably also before the First-tier Tribunal, such that the section 85(6)(b)(i) exemption was operative.
Rule 24 Reply
20. The Respondent filed a Rule 24 Reply, arguing that the Article 8 claim was plainly a 'new matter' and that the appellant had never raised private life previously, although she had considered it of her own motion, in general terms.
21. That is the basis on which this appeal came before the Upper Tribunal.
Upper Tribunal hearing
22. At the Upper Tribunal hearing, there was no skeleton argument from the appellant. Mr Sharma adopted the grounds of appeal as a skeleton argument. He contended that the respondent was aware of an Article 8 issue, as she had considered it in the refusal letter. He referred to the ETS/TOEIC litigation by this appellant.
23. Mr Sharma asserted that for a section 120 notice to be considered separately by the respondent, what it contained must amount to a ground of appeal. A challenge to the correct interpretation of the Rules was not enough. He relied on the decision of the Court of Appeal in Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260 at [36], which he contended established that human rights is a ground of appeal. He then relied on the decision of the Court of Appeal in AS (Afghanistan v Secretary of State for the Home Department [2009] in the judgment of Lady Justice Arden at [36]-[37] and [104]-[107].
24. Mr Sharma conceded that there would be a spectrum as to what was, or was not, a 'new matter'. He relied upon the Home Office Rights of Appeal Guidance, version 3.0 which set out what was, and was not, 'new evidence', giving examples, and in particular, on [19]-[20] and [24]-[27] in that Guidance.
25. The respondent's Home Office Presenting Officer had read the section 120 notice at the hearing, which was capable of amounting to the 'consideration' which section 85 required, and had, of her own motion, considered Article 8 in her refusal letter. Putting the case back for that reason, followed by confirmation that both parties were ready to proceed on the issue of jurisdiction, was enough to amount to consideration of that issue for the purpose of section 85 of that Act.
26. Neither the ETS/TOEIC point, nor the Article 8 issue could properly be described as 'new'; the Article 8 point was an underlying claim which was always there. The appellant relied on HM (Malawi), R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1407 (Admin) in that respect.
27. Even if, which Mr Sharma did not admit, the section 120 notice contained a 'new matter', it had been open to the Tribunal to consider as abusive the Secretary of State's failure to grant consent to its being heard. Both the respondent and the Tribunal risked breaching the public sector duty in section 6 of the Human Rights Act 1998, the respondent by her finding that it is proportionate to remove the appellant now, and the Tribunal by failing to allow Article 8 to be argued. Although the Tribunal's jurisdiction was limited to the grounds of appeal in section 82(1) of the 2002 Act, there was no such limitation in section 84.
28. For the respondent, Mr Harland said that The Secretary of State had not yet made a decision and that, properly understood, the effect of section 85 was to return the respondent to the status of primary decision maker.
29. The statute defined 'new matter' by reference to the raising of a new issue. There was no definition of 'matter'. If the respondent did not consent to the raising of a new matter, an appellant had alternative remedies, for example by way of judicial review. There was simply no justification for treating 'matter' as 'ground' as the appellant alleged. 'New matter' meant 'new issue'.
30. The grounds of appeal had not contended that 'read' was the same as 'considered' and that therefore the section 120 grounds had been considered by the respondent, for the purposes of section 84. Consideration required deliberation, which was more than hasty reading at Court of a statement.
31. This was an opportunistic attempt to switch core issue at the hearing, which could be seen from the jettisoning of the protection claim, when the section 120 notice did not achieve that effect. The appellant's appeal rights on the ETS/TOEIC point had been fully exhausted and more need to be done than simply to raise them again. Section 85 gave the respondent a right to withhold consent if the issue raised was not one which had been considered by her 'in the context of the decision under appeal'. ETS/TOEIC as part of a private and family life claim had never been raised in the earlier proceedings, although they went to the Court of Appeal.
32. It was right that the refusal letter contained brief consideration of such Article 8 matters as were known to the respondent. The respondent always undertook such consideration, but the appellant had never, either in the ETS/TOEIC litigation, or in bringing this appeal, relied on Article 8 before the section 120 notice at the First-tier Tribunal hearing.
33. The legal position was simple, in reality. Parliament had decided that the first decision maker, should she wish, would be the respondent. Mr Harland relied on the Guidance, and in particular, on page 5 thereof, which summarised the respondent's understanding of section 85:
"Section 85 sets out the matters the Tribunal can consider. ?The Tribunal can only consider a 'new matter' which has not been considered by the Secretary of State (SSHD), if the SSHD has given the Tribunal consent to do so. A new matter should not be raised before the Tribunal unless the SSHD has had a chance to consider the new matter."
34. A human rights claim should be particularised so that the respondent could consider and respond to it: see Jaff (s.120 notice; statement of - additional grounds) Iraq [2012] UKUT 396 (IAC) at [24]. Here, the grounds were insufficiently particularised. The Secretary of State was entitled to be the first to deal with new arguments, which the appellant should set out clearly: see Naing & Anor, R (on the application of) v Immigration Appeal Tribunal [2003] EWHC 771 (Admin). The point of section 85 was that the respondent should not be ambushed: see R on the application of Khan v Secretary of State for the Home Department [2014] EWCA Civ 88 at [66]-[67].
35. Mr Harland asked me to dismiss the appeal.
36. By way of reply on behalf of the appellant, Mr Sharma denied that the introduction of the section 120 notice had been an ambush. On the contrary, more particulars had been given than previously, and the respondent in her refusal letter had been prepared to deal with Article 8 ECHR without any particulars. The appellant had not failed to pursue the protection claim: with the advice of his representative, he had decided that there was no need for oral argument, and was content to rely on the material already before the Tribunal.
37. Mr Sharma confirmed to me that the appellant did not seek to challenge the protection decision, nor to challenge the First-tier Tribunal's reasons. The appellant's appeal it would stand or fall on statutory interpretation in relation to section 85 of the 2002 Act.
38. Mr Sharma asked me to allow the appeal and set aside the decision of the First-tier Tribunal.
39. I reserved my decision, which I now give.
The law
40. The provisions of sections 84, 85 and 86 of the 2002 Act, so far as material, are as follows:
"Section 84 Grounds of appeal
(1) An appeal under section 82(1) (refusal of protection claim) must be brought on one or more of the following grounds -
(a) That removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) That removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) That removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
Section 85. Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by [the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, [the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) [83(2) or 83A(2)] against a decision [the Tribunal] may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.
(6) A matter is a 'new matter" if -
(a) It constitutes a ground of appeal of a kind listed in section 84, and
(b) The Secretary of State has not previously considered the matter in the context of -
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120."

86 Determination of appeal
(1) This section applies on an appeal under section 82(1)
(2) [The Tribunal] must determine-
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires [it] to consider."
41. Section 120 gives the respondent the power to invite an appellant to advance additional grounds for remaining in the United Kingdom.
"120 Requirement to state additional grounds for application
?(2) The Secretary of State or an immigration officer may by notice in writing require the person to state-
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom. ...."
42. In Khan v Secretary of State for the Home Department [2014] EWCA Civ 88, having considered BA (Nigeria) v SSHD [2010] 1 AC 444 (26 November 2009), ZA (Nigeria) v SSHD [2010] EWCA 926 (30 July 2010) and Lamichhane, but with particular reference to the mischief identified by Lord Justice Neuberger (as he then was) in ZA (Nigeria), Lord Justice McCombe, with whom Lord Justices Tomlinson and Moore-Bick agreed, summarised his understanding of the intended operation of section 85 thus:
"65. I think that it must have been the intention to prevent claimants from advancing on a new appeal new points and/or new material in aid of old points which might reasonably have been advanced in a previous appeal. The mischief identified by Lord Neuberger in paragraph 3 of his ZA judgment would be met by such an interpretation and he seems to have clearly understood section 96(1) to be read in this sense when he said (at paragraph 29) that it was the administrative procedural equivalent of Ladd v Marshall [1954] 1 WLR 1489. The rule in Ladd v Marshall is, of course, directed to the criteria for the admission of fresh evidence on ordinary civil appeals. Other procedural rules govern the ability to raise fresh "issues" in such appeals.
66. Turning to matters outside the interpretation of the words of the statute, I do not consider that the Parliamentary materials assist our consideration of this question of construction. The explanatory notes and the Minister's statement merely refer to clarification of the certification power and there is no reference to the distinction between "issues" and "evidence" that is now sought to be drawn.
66. As Mr Blundell submitted in his written argument, the Parliamentary record does not "decisively" resolve the point. There was nothing in the Minister's statement addressing the proper meaning of the word "matter" or why the word "ground" had been removed from the section. Moreover, there can be no doubt that the wording of the present section 96 is in fact significantly different from the section as initially enacted. As the Minister said, the object was to make the process easier for caseworkers to operate consistently and for lawyers to understand what had been done. While the latter aim has perhaps not been met, as this case illustrates, nonetheless, if the Respondent is correct, section 96(1) does obviate the need for caseworkers to agonise about whether they are confronted by new issues or new evidence. Equally consistent with the Minister's statement the "one-stop powers" were not, I think, added to and the previous four options in the old Act were reduced from four to two in the new.
67. Next, I am not persuaded that the question of shutting out an individual's access to an impartial tribunal (Saleem's case (supra)) really arises here in quite the same way as it did in that case. ?The Appellant here has not been shut out in that way. He has had one full appeal to an independent tribunal and has had his application for permission to appeal to a higher tribunal considered on no less than two occasions. The issue that he wished to raise was the same as that considered on the first appeal, namely the question whether his rights and/or those of his family under Article 8 were being breached. He merely wished to bolster by new evidence the case that he had lost on the first occasion. That does not seem to me to be an exclusion of a right of appeal of the same quality at all."
I adopt and rely on that interpretation, which I have found of great assistance in this appeal.
The Secretary of State's guidance
43. The Secretary of State's guidance to her caseworkers is not a binding guide to statutory interpretation, particularly where, as here, there is in reality no ambiguity in the statute. The Secretary of State's Rights of Appeal guidance, so far as relevant, says this:
"What is the difference between a new matter and new evidence?
?A 'new matter' must be clearly distinguishable from and outside the context of the original claim. The following examples are likely to constitute new matters:
A protection claim has been made, including a claim under Article 3 of the ECHR, but the appellant is now claiming removal would be (or would also be) a breach of Article 8 based on his family life ?
Additional facts or evidence relating to the original claim do not amount to a new matter. The following examples are unlikely to constitute new matters:
A human rights claim has been made based on private life under Article 8 of the Convention but since the decision on this matter further time has elapsed, friendships have developed and property assets have been acquired ?
An application has been made for leave to remain as a parent but since the decision on this matter additional children have been born
A protection claim has been made, but since the decision on this matter, an additional risk factor has been identified or the country situation has changed.
Where the material raised by the appellant does not amount to a new matter, the Tribunal is entitled to consider that material when deciding the appeal.
A matter can only be described as 'considered' by the SSHD where a decision has been made on the merits of the matter raised. "
44. The guidance is not binding upon me, but it does give an indication of the respondent's approach, which indication is publicly available.
Discussion
45. I have had regard to all the submissions, and all of the passages in the authorities to which I was taken, whether or not specifically set out in this decision. The question is whether the Article 8 point taken in the section 120 notice served at the First-tier Tribunal hearing was a 'new matter' for the purpose of section 85 of amended 2002 Act.
46. The first point to make is that the appellant's right to appeal against the ETS/TOEIC decision had been exhausted, whether considered on the basis of the Rules or under Article 8 ECHR. The decision of the Upper Tribunal in SM and Qadir did not make it proper to reopen it before the Upper Tribunal. The interjection of the section 120 notice referring to the ETS/TOEIC does not entitle the appellant to reopen an issue which has been considered by the Court of Appeal already, without any reference being made to any Article 8 issue. The appellant has not been shut out: the Article 8 variant of his ETS/TOEIC arguments could and should have been raised in the earlier proceedings. This is a case where he 'merely wished to bolster by new evidence the case that he had lost on the first occasion'. The proper course to be taken in that respect, if any evidential issue arose out of SM and Qadir, would have been to make further submissions to the respondent, giving her the role of first decision maker on such issues, once particularised.
47. As regards the broader Article 8 argument at [2] in the section 120 notice, I accept that a section 120 notice may be served at any time. The remaining Article 8 ECHR argument in the section 120 notice is entirely unparticularised:
"[2] I have established a private life in the United Kingdom of the continuation of the private life is being unlawfully denied pursuant to a decision now shown to have no substance."
48. The applicant's grounds of appeal to the First-tier Tribunal related only to asylum and humanitarian protection. This is a case where, as in the first example given in the Guidance, a protection claim has been made, including an Article 3 claim, but the appellant is now claiming that there would be a breach of private and family life. It does not appear that any family life is relied upon, and I have regard to the effect on private life of the appellant's status in the United Kingdom: little weight can be given to it under paragraphs 117B(4) and (5) because his presence in the United Kingdom has been either precarious or unlawful throughout.
49. The inclusion in the First-tier Tribunal grounds of appeal of the phrase 'further grounds may be adduced at the time of the hearing' does not, in the context of section 85, indicate that such grounds will go beyond the protection issues under asylum and humanitarian protection, nor does it give the appellant an option to vary limitlessly his grounds of appeal before the First-tier Tribunal or the Upper Tribunal thereafter. The Tribunal, and the respondent, were entitled to assume that any such grounds would be sui generis with the existing grounds of appeal.
50. Human rights is a section 84 ground of appeal. Section 85(6)(a) is therefore met, but that subsection is conjunctive with section 85(6)(b), and it is plain that the respondent has not previously considered the Article 8 claim now made, such as it is, in the context of the decision under challenge, nor a section 120 statement. The appellant had not given her the opportunity to do so. This question is undoubtedly both a fresh ground and a fresh issue, and amounts to a 'new matter' as defined by section 85(6).
51. Accordingly, the Home Office Presenting Officer before the First-tier Tribunal, representing the respondent, had the choice whether to consent to its introduction. He did not consent, and that meant, applying section 85(5), that the First-tier Tribunal had no jurisdiction to consider the Article 8 point raised in the section 120 notice, until the respondent had done so and had made an appealable decision thereon. The appellant's attempt to graft an entirely different case onto the asylum and human rights claim before the First-tier Tribunal was unsuccessful. The First-tier Tribunal did not err in refusing to admit the Article 8 claim.
52. For the avoidance of doubt, I do not accept that the Home Office Presenting Officer reading the section 120 notice over the short adjournment amounted to 'consideration'. There were no particulars to consider and the time was too short. 'Consideration' implies more than just reading a document: if it did not, section 85(5) and section 85(6) would have made no change to the legal position at all and would be completely ineffective. I am fortified in this by the final sentence of the passage from the respondent's guidance quoted, but I would have arrived at that conclusion from the natural meaning of the words of the statute in any event.
53. Nor do I accept Mr Sharma's submission that the Tribunal could have, or should have, rejected the respondent's refusal to consent as an abuse of process. If the appellant wished to challenge the respondent's refusal to consent, he could have done so by judicial review. Alternatively, the effect of section 85 is to permit the respondent to make a reasoned decision on Article 8. If it were negative, the appellant could then challenge it by whatever means were available to him, on receipt of that decision.

DECISION

54. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of no error on a point of law

Date: 21 October 2016 Signed Judith AJC Gleeson Upper Tribunal Judge Gleeson