Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02403/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 21 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

AHMED RAZA
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: absent
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Adio promulgated on 22 August 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 11 January 1983 and is a national of Pakistan.
4. On 27 February 2016 the Secretary of State refused the Appellant's application for asylum.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Adio ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 13 September 2016 Judge Frankish gave permission to appeal stating inter alia
"2. The application for permission to appeal asserts an adjournment should have been granted on the basis of a written request accompanied by a doctor's report submitted the day before.
3. The appellant's absence as remarked upon at [7] with no other comment than the fact that he had been duly served. It is not obvious from the file that the adjournment application with medical evidence was there to be seen by the F-tTJ. Indeed, with the hearing being on 10 August 2016, the application bears the same date (not the date before as claimed) while the facsimile transmission verification report is timed and dated at 10:12 on 27.01.2006 (sic). Nevertheless, the medical report confirms occurrence of chest and upper abdominal pains accompanied by vomiting for which a medical consultation was necessitated between 1.27 and 1.51am on the day of the hearing with treatment prescribed as a result. Arguably, to have proceeded in the appellant's absence was to have proceeded on a material erroneous assessment of the facts."
The Hearing
7. The appellant was neither present nor represented. On the day of the appeal hearing the appellant faxed a document headed "statement of Mr Ahmed Raza" to the Upper Tribunal in which he asked that this appeal should be considered on the papers only.
8. Mr Bramble, for the respondent, opposed the grounds of appeal. He confirmed that he understood the appellant's position to be that the appellant had been unwell and so unable to attend the hearing before the First-tier on 10 August 2016, but expressed concern that the appellant may be dishonest. He told me that the respondent's position is that the appellant did not request an adjournment, & that the documents which accompany the application for permission to appeal were produced for the first time when the application for permission to appeal was submitted. He urged me to take account of the appellant's immigration history (set out at [2] of the decision promulgated on 22nd of August 2016. He told me that the appellant had had a fair hearing, and urged me to dismiss the appeal and allow the decision of Judge Adio to stand.
Analysis
9. The 2014 Procedure Rules Rule 4(3)(h) empowers the Tribunal to adjourn a hearing. Rule 2 sets out the overriding objectives under the Rules which the Tribunal "must seek to give effect to" when exercising any power under the Rules. The overriding objective is deal with cases fairly and justly. This is defined as including
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; (e) avoiding delay so far as compatible with proper consideration of the issues.
10. At [7] of the decision, the Judge records that the appellant was not present at the First-tier hearing. It is clear from what the Judge records there that the Judge did not have sight of the appellant's application to adjourn, nor the print from the appellant's doctor records stating that, in the early hours of the day of the First-tier hearing, the appellant was seen by a doctor and received treatment for a stomach upset.
11. There is no indication that the appellant did not contact the First-tier hearing centre on 10 August 2016. The documents produced with the appellant's application for permission to appeal confirmed that on the day of the First-tier hearing the appellant consulted a doctor and was given a prescription for medicine. The printout of the doctor's notes indicate that the appellant was not seriously ill, but a stomach upset would be difficult to deal with in the tribunal setting.
12. In Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) it was held that if a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing?
13. At [7] of the decision the Judge summarises the hearing. It is clear that the appellant did not participate in the hearing, and that the Judge was unaware of that request made from an adjournment. That is not the Judge's fault, but the net effect is that the appellant has not had the hearing that he sought, and, on the balance of probabilities, the reason that he has not had that hearing is because he was ill.
14. I therefore have to find that the decision is tainted by a material error of law and set it aside. The nature of the error which caused the decision to be set aside indicates that none of the findings can be preserved and an entirely new fact-finding exercise is required.
REMITTAL TO FtT
15. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
16. I find that this case should be remitted because of the nature and extent of the judicial fact finding which will be necessary to make a just decision in this case. In this case none of the findings of fact are to stand.
17. I remit the matter back to the First-tier Tribunal sitting at Hatton Cross, before any First-tier Judge other than Judge Adio.
CONCLUSION
Decision
18. The decision of the First-tier tribunal is tainted by material errors of law.
19. I set aside the decision. The appeal is remitted to the First Tier Tribunal to be determined of new.

Signed Date 19 October 2016

Deputy Upper Tribunal Judge Doyle