Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01622/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 August 2016
On 11 August 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

[A K]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Sellwood, Counsel, instructed by Visa Inn Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sierra Leone. On 16 May 2016 First-tier Tribunal Judge Amin dismissed the appeal she had brought against the decision of the respondent on 5 October 2015 to refuse her claim for asylum. In her grounds of appeal the appellant submitted that the decision was contrary to the Refugee Convention and was wrong not to grant her humanitarian protection or leave under the private and family life provisions of the Immigration Rules.

2. The appellant in her grounds of appeal stated that she would be giving evidence and required the assistance of a Temne interpreter. The Tribunals Service sought to book such an interpreter but eventually confirmed there was no Temne interpreter available. When the appeal was relisted to be heard on 6 April 2016, the appellant's representative requested that this be converted to a CMR in light of the FtT's inability to secure a Temne interpreter. On 4 April the request was refused with a direction that the appeal proceed to a hearing on submissions only. On 5 April the appellant's representatives wrote saying that it was "of grave concern" that it remained that no interpreter could be found; and that having taken instructions, "we respectfully request that the appeal for tomorrow be converted therefore to the papers - given that the bundle skeleton argument before the court is both detailed and extensive and all supporting documents are before the court."

3. At [8] of her determination Judge Amin reflected this as follows: "[t]here was an agreement between the parties that the hearing would proceed on submissions only as it had been difficult to secure the assistance of a Temne speaking interpreter."

4. The grounds of appeal raised several points, the one advanced most strongly by Mr Sellwood being that of procedural fairness. He emphasised that in both of her asylum interviews the respondent had secured the assistance of a Temne interpreter. He cited various authorities relating to adjournments, including Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC) and several old IAT cases. His argument in a nutshell was that the appellant had been denied the opportunity to give evidence in person as she had requested. Despite the fact that the judge who refused the first application for permission rejected the other grounds and the eventual grant only gave express leave to argue the interpreter point, Mr Sellwood submitted that the judge had also erred in failing to determine the appellant's humanitarian protection claim and also in failing to determine, in the context of assessing the Article 8 claim, the best interests of the child.

5. I am grateful to both representatives for their very succinct and able submissions. I have had regard to the respondent's Rule 24 notice. It seems to me that this is a case where it is important to look first at what the judge did in relation to the appellant's grounds of appeal and how the judge set out his findings. In this context it is clear that the judge failed to make a proper finding on the appellant's humanitarian protection claim. Despite correctly noting at [31] that this claim had two limbs (a) medical; and (b) her fear of robbers in Sierra Leone, the judge only proceeded to address (a). Notwithstanding that the appellant' claim based on (b) was not on its face a strong one, but the judge should have addressed it.

6. As regards the judge's treatment of the appellant's Article 8 claim, he properly identified this on her being able to claim that she could meet the requirements of the Rules that she would face very significant obstacles to return back to Eritrea; and if unable to do that, on being able to show that the refusal decision would breach her Article 8 rights. Here there are two difficulties. The judge (again) nowhere addresses the appellant's claimed fear of harm at the hands of robbers. Second, the judge's assessment nowhere takes into account, as a relevant consideration, that it has been made without the benefit of the appellant's oral evidence. On certain matters, e.g. the extent of her ability to take care of herself in terms of daily tasks, the appellant's oral evidence may have been relevant.

7. Having noted certain deficiencies in the judge's determination I turn back to the principal ground of appeal based on procedural unfairness. In certain respects the ground lacks foundation. On the basis of the letter sent by the appellant's representatives, the judge was clearly entitled at [8] to state that there had been agreement that the appeal would be by way of submissions only. Looking at this letter it must also be questioned why the appellant's solicitors considered that the failure to secure an interpreter for the appellant warranted them not attending along with the appellant's daughter as a witness. The daughter would have been in a position to give evidence about the physical and mental ability of her mother and related matters. She may also have been able to shed on the likely living circumstances her mother would face on return to Sierra Leone. At the same time, the judge should not have forgotten the fact that the conversion of the hearing to one on submissions only was not the original wish of the appellant or her solicitor and that it had only come about as a result of the failure of the Appeals Service to secure a Temne interpreter and that the appellant's solicitors continued to regard the failure to secure a Temne interpreter as a matter of "grave concern".

8. In the above circumstances I consider that the hearing was procedurally unfair and that it should go back on remittal to the First-tier Tribunal to be heard afresh before a judge other than Judge Amin.

9. I further direct that:

1. A fresh attempt be made to obtain a Temne interpreter. Given that we know that an interpreter in the language was secured by the respondent on two occasions during the appellant's asylum procedure, it is far from obvious that the Appeals Service has used best endeavours. It may be that the potential pool of interpreters is tiny, because her representatives confirmed on 21 July 2016 that she does not speak Mendi or Krio (languages that some Temne speaks also speak), but fresh efforts should be made. This being a direction to the HMCTS, it is to be meditated through the Resident FtJ Judge at Hatton Cross.

2. The appellant's representatives inform the Tribunal within 14 days as to whether or not the appellant's daughter will attend to give evidence.

If in consequence of these directions it is established that despite fresh endeavours there is no Temne interpreter, the FtT will be entitled to proceed with the case. If it is confirmed that the appellant's daughter will not or cannot attend, then the FtT will be entitled to determine the case on the basis of submissions only.

For the above reasons:

The FtT judge materially erred in law.

The decision is set aside and remitted to be heard afresh by the FtT.

No anonymity direction is made.

Signed Date: 9 August 2016

Dr H H Storey
Judge of the Upper Tribunal