PA/02512/2017

• Status of case: Unreported
• Hearing date: 13 Jul 2022
• Promulgation date: 21 Sep 2022
• Publication date: 6 Oct 2022
• Last updated on: 6 Oct 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02512/2017


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 13 July 2022
On 21 September 2022



Before

UPPER TRIBUNAL JUDGE PERKINS


Between

A I
(ANONYMITY ORDER IN FORCE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant:
For the Adjournment Application: Mr R Spurling, Counsel instructed by Middlesex Law Chambers, solicitors
For the hearing: The Appellant in person
For the Respondent: Mr J Fletcher, Counsel instructed by Government Legal Department
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court. I make this order because the Appellant seeks international protection and is entitled to privacy.
Introduction
2. This case has a long procedural history. The Appellant is female citizen of Greece and is about 60 years old. In Greece she worked as a judge, having been appointed sometime in 1991, or thereabouts, until she was dismissed in July 2005. After her dismissal she left Greece and arrived in the United Kingdom in July 2005 and has remained there ever since
3. The authorities in Greece issued five European arrest warrants naming the Appellant and alleging criminal acts committed by the Appellant in connection with her position as a judge. The Appellant opposed extradition claiming that the criminal charges were politically motivated. During the course of the extradition proceedings, the Appellant applied for international protection and/or leave to remain on human rights grounds relying on Article 3 of the European Convention on Human Rights. It was her part of her case that she would be imprisoned in Greece in conditions that were so poor that exposing her to them would violate her “Article 3” rights.
4. On 22 May 2015 the Respondent certified the claim as “clearly unfounded” and later determined that subsequent submissions did not amount to a fresh claim. However, on 18 February 2017 (that is more than 5 years ago), the Secretary of State made an appealable decision refusing all applications and it is the appeal against that decision which was dismissed by the First-tier Tribunal and is now before me.
Reclusion
5. This appeal was listed before Deputy Upper Tribunal Judge Ben Keith and me but, at the start of the hearing, Deputy Judge Keith reclused himself because at some stage he had given advice to the Appellant in matters connected with her circumstances. The Appellant recalled seeing him and Mr Spurling said that he would have asked Deputy Judge Keith to recluse himself if Deputy Judge Keith had not explained why he could not hear the case.
6. Deputy Judge Keith left the hearing room immediately after we explained that he must recluse himself.
7. Mr Spurling was instructed to ask me to recluse myself lest I had been somehow influenced by anything that Deputy Judge Keith had said. I refused that application. Nothing had passed between of us that could have influenced me. As I think I indicated in the hearing room, there had been an exchange of correspondence by email between us where Deputy Judge Keith had explained that he could not hear the case and I had responded indicating that I was sorry that he could not sit with me because I would have been grateful for his help, or words to that effect. At some point in our exchange of e-mails Deputy Judge Keith described the appeal as “interesting” but no explanation or further details were given and that is the extent of our discussion of the substance of the case, that is we did not discuss it at all.
8. It is absolutely plain from the e-mail chain that there was no discussion whatsoever about the merits of the appeal. Indeed, we were both very determined that there would be none. The elective wall of silence remained firm when Deputy Judge Keith came to my chambers on the morning of the hearing. We were conspicuously careful to discuss only the other case that we were expected to try together.
9. I did point out in the hearing room when considering Mr Spurling’s application that I recluse myself, that if Deputy Judge Keith and I had any wish to discuss the case and hide that fact from the Appellant we could have removed his name from the cause list and no one would have known that he had ever had the papers but we did not think that was the right way to behave.
10. If we cannot be trusted when we say we did not discuss the case then we cannot be trusted to do our jobs. It is going too far to say that it has the appearance of unfairness that we might have said something when we have gone out of our way to explain that we did not and the parties only know that we had an opportunity to discuss it because we made that plain too. Although it is important that the parties have confidence in the Tribunal it is also important that judges do not recluse themselves for weak reasons lest that could encourage “tribunal shopping” which would be seriously wrong.
11. I make plain that I have not discussed this case with Deputy Judge Keith. My only knowledge of his involvement with the Appellant is what he has disclosed in emails which was an indication that he had given advice at some stage but had not represented the Appellant.
Adjournment Application
12. After I declined to recluse myself Mr Spurling asked me to adjourn the hearing. I refused that application. It was, essentially, the oral renewal of an application made by his solicitors and supported by an opinion from Mr Spurling that was refused administratively by me the day before the hearing. I explain my reasons for refusing the application in more detail below but it is important to remember that I had read the papers before the hearing and my decision was influenced by the history of adjournment applications in this case.
13. Mr Spurling was not instructed until 5 July. The hearing was on 13 July. He had a conference with the Appellant and after that conference did not feel able to represent her on 13 July 2022 because he had not had time to undertake the research that he felt that he needed to do.
14. This is not an extradition case. This Tribunal has no jurisdiction to hear extradition matters but the Appellant has been subject to extradition proceedings and, Mr Spurling thought, some familiarity with extradition proceedings was needed to understand this appeal.
15. The core points of this case, as I understand them, are within the experience of judges of this Tribunal and of Counsel such as Mr Spurling who are experienced in appeals before this chamber of the Upper Tribunal. However, I can understand that there are matters connected with the extradition that could make responsible Counsel want to do further research on matters that are on the fringes of their likely expertise. As far as I can make out Mr Spurling has done nothing whatsoever to his discredit. He has acted diligently and expeditiously with a very big pile of papers that was presented to him at very short notice but the fact is that he was not ready to present the appeal.
16. I am also satisfied that the Appellant’s present solicitors have behaved appropriately. This case first came before the Upper Tribunal on 11 March 2022 when Upper Tribunal Judge Kamara was due to hear the appeal and the Appellant was not represented. Mr Fletcher appeared for the Respondent then as he did before me.
17. The Appellant told Judge Kamara that the grounds of appeal upon which permission had been granted by the First-tier Tribunal were drawn by a solicitor (then) working for her (then) representatives but they had not informed her that permission had been granted to appeal the decision of the First-tier Tribunal or that the solicitor had gone to work for another firm. The Appellant claimed she had only learned of the “error of law” hearing before Judge Kamara because of contact from the administration at Field House a few days before the hearing. The Appellant received no communication from her solicitors to say that they had withdrawn their representation and she did not feel able to represent herself. She immediately contacted a range of firms and had found someone who was prepared to see her soon after 11 March.
18. Judge Kamara was satisfied that the Appellant had been disadvantaged by the late withdrawal of her solicitors and the case was hard to prepare because the grant of permission was “devoid of reasons” and the grounds were rightly described as “discursive”. Judge Kamara believed that proper legal representation could be expected to produce more focused submissions that were likely to help everyone.
19. I had a statement from a Ms Hina Choudhery who is a solicitor with Middlesex Law Chambers. She confirmed that she is the principal of the firm and made the statement supporting the application for an adjournment of the hearing before me and explaining her firm’s involvement. She said she took over the conduct of the case on 5 July to undertake an orderly transfer of the files from a caseworker who had been involved earlier. That person had indicated she was leaving Middlesex Law Chambers on 25 June 2022 and planned to start alternative employment in September.
20. Ms Choudhery explained that the Appellant wanted to “be actively involved in the selection of Counsel” and a list of possible Counsel was sent to her for consideration.
21. A conference with counsel was not arranged until 5 July. Ms Choudhery thought that the matter could be prepared effectively but she had not had the papers from the earlier solicitors. She became very active on 5 July to prepare for a conference on 8 July. She thought that she knew which firm of solicitors had the papers but discovered that three different firms might have had them. Two of those firms ignored her requests for help until after the involvement of the Solicitors Regularity Authority. Ms Choudhery eventually got the papers with help from Government Legal Department. She asked for a short adjournment so that Counsel could do the research that he wanted to do.
22. The statement concluded by indicating that the writer did not see how she could continue to act if the case was not adjourned.
23. I do appreciate the attractiveness of the application which was presented well by experienced lawyers.
24. However I noted that there was an earlier application for an adjournment which was refused on 24 June 2022 administratively by the Tribunal lawyer, Mr Asim Hussain. There the Appellant’s representatives complained that they had not received the Appellant’s file from her previous representatives and that “Fiona” was leaving the firm. In Mr Hussain’s opinion such change of staff was all part of the ordinary administration of an office and there was time for the Appellant’s representatives to prepare the case. That application was not renewed directly to a judge and it is very hard to see anything to criticise in Mr Hussain’s decision. The Appellant had time but did not use it.
25. I also found it relevant that the Appellant has worked as a judge. I accept that she has been under a lot of stress and has associated health problems but I do not accept that she has lost all interest in her litigation. She knew the importance of being ready for the hearing and although I am, of course, satisfied that the Appellant’s solicitor has told me the truth I am not equally confident that the Appellant has given all the help that she might. I note, for example, the solicitor’s observation that there was an appointment on 29 June but because of health conditions the Appellant could not attend. It is hard to believe that, absent really serious illness, useful work could not have been done, for example, by telephone if the Appellant was too ill to get to the solicitors.
26. It can be very difficult to take a consistent, firm and fair line on applications of this kind. People become ill. Even well-run solicitors’ offices sometimes get in a muddle and cause delays and sometimes the only fair way out is to adjourn but fairness involves more than the convenience of the Appellant
27. I reminded myself that the Appellant is very anxious about this case. I do understand that, and she has reason to be, but that might have been a reason to be more proactive in bringing matters to a head. This will become apparent when I look in more detail at the Decision and Reasons complained of. The Appellant had, according to paragraph 41 of the Decision and Reasons, since making her asylum claim instructed nine different firms of solicitors including “a number of which have a reputation as immigration specialists”.
28. I noted that the Appellant before me was very proactive. I paused to let Mr Spurling take instructions several times during his submissions and had to stop the Appellant addressing me directly. She presented as someone who was anxious but also astute and very involved in her case.
29. Putting all these things together I refused the application for an adjournment.
30. When I refused the application I said:
“I have to rule on a renewed application for an adjournment in an appeal that was previously set down for hearing on 11 March 2022 before Upper Tribunal Judge Kamara and adjourned at the Appellant’s request. Essentially she maintained that she had been let down by her then solicitors. The application was granted. The applicant seeks to resist removal to Greece where, at least on one version of the evidence, she will be imprisoned in the event of her return. I understand that she really wants to avoid that and I accept that she must be under significant personal pressure.
Further, this is a case that would benefit from professional representation. There are many side issues. It is an interesting case but one where I feel there is a real risk of not being able to see the wood for the trees. All these things no doubt influenced Upper Tribunal Judge Kamara when she adjourned and not much has changed since.
Mr Spurling of Counsel appeared to make the adjournment application. He was instructed on, I think, 5 July and says he is not ready to present the case. Whilst it may be the core points are simple there are many aspects he wants to investigate. I accept what he tells me and there is nothing here that is critical of him. I have to ask why he was not instructed sooner. Apparently other Counsel were considered and then there were difficulties getting the papers.
Looked at solely from the Appellant’s perspective fairness demands more time. However, the Secretary of State opposed the application. There was no good reason for not instructing Counsel sooner and I could not avoid the suspicion that further adjournment would lead to further delay and a further application in the future. I decided there was little hope of the case going ahead promptly if it was adjourned today. The history of late applications for adjournments was too strong and I decided in the interests of justice as a whole, which includes justice to the Secretary of State and to other litigants whose cases are necessarily delayed by other cases being returned to the list that ought to have been determined, that the fair thing to do was to refuse the application. That was the test that I applied and that the parties agreed that I should apply, although no doubt they had different views of the outcome.
31. I made that decision at about 12:30 and I indicated I would start the hearing at 2 o’clock.
The Hearing and Further Adjournment Application
32. At 2 o’clock the Appellant in person asked me to “postpone”. She then produced some evidence of ill health. It was something that she happened to have in her possession that confirmed her unhappy medical history including anxiety and depression and panic attacks. The most recent was a report of 27 June 2022 saying that the Appellant would benefit from psychological support and her blood pressure “might increase the risk of retinal detachment and loss of sight”. This was presented to me as medical evidence showing that she risked her sight by presenting a case. That really is going too far; it is not what the medical evidence meant. The risk was I found, merely theoretical to the point of being fanciful.
33. Nevertheless I reflected on this because it is undesirable to insist that an unrepresented person presents her case when she says that she is not ready. However, I did have extensive grounds on which permission had been granted. Mr Fletcher had done the best that he could to respond to those grounds and although, because of their structure rather than their content, he had not found that easy he had produced a skeleton argument which set out the issues. The Appellant had seen the skeleton argument. She said she did not understand it. That could be a reflection on that way that they were written rather than on the Appellant but that is not doing justice to Mr Fletcher’s submissions which I found to be straightforward and helpful. I appreciated that the Appellant is not qualified in the United Kingdom but she was clearly very interested in the case and she is clearly educated. I did not believe that she could not have had any proper understanding of what the appeal was about if she had not made some effort. However, the fact was that she said she had not and in those circumstances there was very little she could do.
34. I asked Mr Fletcher some questions intended to “headline” submissions. It was his case that there was no error of law. There was no suggestion that the judge has applied the wrong legal test. In his submission that was no arguable case, certainly not a sustainable one, that the decision was irrational or explained inadequately. The primary complaint related to the refusal to adjourn and he said that decisions on such matters were very much within the judge’s discretion.
35. The Appellant did not wish to comment on these submissions.
36. I decided that the fair thing to do was to refuse the adjournment application and, as neither party wanted to say any more, to make a decision on the papers that are before me, which is what I now propose to do.
Analysis of First-tier Tribunal Decision and Reasons
37. The Decision and Reasons is the decision of a panel, comprising First-tier Tribunal Judge Loke and First-tier Tribunal Judge Welsh, but it is written by Judge Welsh. Although not always put in quotation marks much of my summary of the Decision and Reasons is based very closely on the words used therein.
38. The Decision and Reasons follows a hearing at Taylor House on 2 March 2021. It was promulgated on 28 June 2021. There were further written submissions received on 18 March 2021. I note in parenthesis that the Appellant asked me at the end of the hearing before me if I would receive further written submissions, which I declined to do. I saw her request as an indication of her underlying understanding of the decision making process and although the decision to adjourn had already been made by then her request supported my view that the Appellant did have sufficient wit to play a significant part in the preparation and presentation of her case if that was her wish.
39. The Decision and Reasons began by identifying the Appellant as a national of Greece and indicating her date of birth which I note is not the same as the one recorded on the Tribunal file although I do not think anything turns on this.
40. It is her case that she was appointed a judge sometime in 1991 and was dismissed in July 2005. She left Greece following her dismissal and entered the United Kingdom on or about 19 July 2005 and has remained there.
41. The Greek authorities were displeased with her performance and wanted her back in Greece.
42. Between March 2007 and April 2011 they issued five European arrest warrants (EAWs) in the Appellant’s name in respect of numerous criminal offences said to have been committed by the Appellant in her capacity as a judge or connected with her position as a judge. These are identified as EAWs 1–4, which were said to compromise “misdemeanour offences” for which she had been convicted and sentenced to terms of imprisonments and EAW 5 which, in its original form, had two distinct components; first a “conviction element”, namely misdemeanour offences for which she had been convicted and sentenced in her absence to terms of imprisonment and, second, “an accusation element” alleging “felony matters”.
43. Two types of misdemeanours were identified, categorised by the Tribunal using the language of the extradition proceedings, as “breach of duty” offences and “concealment” offences.
44. The “felony matters” related to much more serious matters including fraud, money laundering and corruption. The Appellant had been charged with, but not tried for, offences in this second category.
45. The Appellant opposed the application for extradition. It was her case that the charges were politically motivated. She submitted that they were brought in bad faith in order to punish her for her left wing opinions. She said her decision making was always (!) legally sound but she recognised she approached her role as a judge from a liberal and anti-establishment perspective. She said she had exposed corruption and resisted all improper attempts by the senior judiciary to interfere with her judicial independence. She said that her history meant she would not have a fair trial on the felony charges if she were returned to Greece. She also argued that being detained in prison would breach her rights under Article 3 of the European Convention on Human Rights.
46. On 16 January 2012 a District Judge made an “extradition order” on the basis of all five EAWs.
47. The Appellant appealed to the High Court. There were two judgments of the High Court, one issued on 14 July 2014 and another on 6 March 2015, relating to proceedings between the Appellant and the “Appeal Court in Athens and Appeal Court in Piraeus”. In the second High Court judgment, relating solely to the Appeal Court in Athens, the High Court rejected the Appellant’s assertions that the charges were politically motivated and found that she did not face a real risk of being exposed to conditions contrary to her Article 3 rights. EAWs 1–4 were quashed because of a change in the law in Greece meaning that she could not be sent to prison for those offences. EAW 5 remained in a restricted form. It comprised a felony charge and convictions for the concealment offences. The order of the district judge in respect of the breach of duty offences was quashed because the offences are not recognised in English law.
48. According to the First-tier Tribunal, “in the midst of these extradition proceedings”, in April 2014, the Appellant made a protection and human rights claim on the same basis that she was trying to resist her application for extradition, that is that she was the victim of political persecution and removing her to Greece would breach her “Article 3 rights”.
49. On 22 May 2015 the Secretary of State certified the Appellant’s claim and determined on 15 December 2016 that subsequent submissions did not amount to a fresh claim. All this was reconsidered and, in a decision dated 18 February 2017, the Respondent refused the protection and human rights claim but that decision attracted a right of appeal. That is the decision that was appealed to the First-tier Tribunal.
50. The Appellant relied on the Refugee Convention and human rights grounds although it was made plain she did not rely on Article 8 of the European Convention on Human Rights but on Articles 2 and 3 only. It was her case that the findings of the High Court were not determinative because further evidence had come to light that cast doubt on the evidence given to the High Court by the Greek prosecutors and that the Greek authorities had approached the Appellant’s request for documents with “a degree of belligerence” consistent with her professed fear of persecution. The Article 3 claim was based on prison conditions and the claim was enhanced by her medical difficulties.
51. Four additional points were raised in grounds drawn by Counsel lodged on 10 June 2020. In summary outline these were that the Appellant had been sentenced to thirteen years’ imprisonment for the felony offences following her conviction and that was excessive punishment so that it amounted to persecution. It is also described as excessive prosecution by the Greek authorities. It was said that this behaviour by the Greek authorities showed that the assurances given to the High Court by the Greek authorities were not to be relied upon.
52. It was also said that the trial for the felony matters was unlawful because it was in breach of her rights to a fair trial.
53. Additionally there was a Note Verbale dated 5 November 2019 which disclosed a significant breach of Article 22 of Council Directive 2005/85/EC. It was the Appellant’s case that the decision to remove the Appellant is contrary to the Procedures Directive and Article 39 of the ECHR.
54. The Tribunal then outlined the procedure history.
55. The Tribunal noted that on 2 March 2021 the appeal was listed before the First-tier Tribunal. The Appellant did not appear and her witnesses were not available. She was represented by Counsel (not Mr Spurling) who applied for an adjournment. It was argued that it was unfair to proceed in the absence of the Appellant and the Appellant’s witnesses and the Appellant required further time to obtain evidence. Further, she had been sentenced to thirteen years’ imprisonment on 6 March 2020 and that sentence of imprisonment was a new matter within the meaning of Section 85 of the Nationality, Immigration and Asylum Act 2002, and the Secretary of State had not consented to it being considered by the Tribunal nor considered its implications.
56. The Tribunal, at paragraph 13 of the Decision and Reasons, reminded itself of its Case Management powers under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2004 and the guidance given in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC).
57. The Tribunal recorded it had taken account of written submissions from Counsel dated 23 February 2021 and 1 March 2021 and written submissions by the Appellant on 2 March 2021, the skeleton argument from both Counsel and their oral submissions as well as the procedural history. The Tribunal then went on to say that its management powers set out in Rule 28 of the Tribunal Procedure Rules require the Tribunal to be both fair and to act in the interests of justice.
58. It was said that the Appellant could not attend because she developed symptoms of being infected by the Coronavirus and she could not participate remotely because of the severity of her symptoms. At this time it was quite common to offer Cloud Video Platform in certain cases.
59. The Secretary of State, through her Counsel, contended that the claim that the Appellant was too unwell lacked credibility and that the Appellant had not filed a witness statement and most of her witnesses had not filed a witness statement. Without a good explanation for these omissions there was not sound basis for finding that the unavailable witnesses had anything useful to say.
60. At paragraph 17 the Tribunal said:
“In our view, the limitations of the evidence upon which the Appellant was relying, whether written or oral, was not a relevant consideration. She was entitled to be present at her appeal hearing even if no oral evidence would be heard. However, we concluded that her non-attendance was a deliberate attempt to frustrate proceedings and that she either had no Covid symptoms, or if she had symptoms, whether as a result of Covid or any other medical condition, her symptoms were not so severe that she could not participate remotely. We reached this conclusion for the following reasons”.
61. The Tribunal then outlined the reasons including that it was the third occasion that the Appellant had claimed she could not attend because she had been developing Covid but no claim had been substantiated.
62. At paragraph 21 the Tribunal recorded that on 4 December 2020 the Appellant telephoned the Tribunal Customer Services number and spoke to a member of staff. On the same day the Appellant’s sister, who is resident in Greece, e-mailed the Tribunal providing information on behalf of the Appellant. The gist of that information was that the Appellant said that she had been unaware of the substantive hearing listed for 7 December 2020 because her computer had broken down and so she could not access emails and she had received no notification by post. She said she had only become aware of the hearing date because of a chance telephone call to the Tribunal asking for an update. She attached what purported to be a letter from a computer repair shop dated 3 December 2020 intended to add credence to her claim. Additionally, there was an email from the NHS Home Testing Service stating that a Coronavirus home test would be delivered, there was a letter from the NHS requesting her to self-isolate having reported symptoms and there was a printout from an email from NHS Home Testing Services dated 4 September 2020 stating that the Coronavirus test would arrive in the next couple of days. There was also a request by her general medical practitioner dated 30 November 2020 to the Whittington Hospital for a test relating to Chronic Obstructive Pulmonary Disease, the medical practitioner noting that the Appellant is a smoker.
63. The Tribunal did adjourn the appeal and relisted it for hearing on 3 March 2021 with directions requiring service of medical evidence and informing the Appellant that if she wished to attend remotely the Tribunal would provide her with a laptop and deliver it to her home address so that she could take part.
64. However, the Tribunal also recorded that it did not believe the Appellant’s claim that she was unaware of the hearing listed for 7 December 2020. No good reason was advanced for the Appellant not accessing emails during the time when her laptop was reportedly malfunctioning because she had emailed Judge Loke and the Tribunal caseworker assigned to the case directly on a number of occasions. Also the Tribunal staff confirmed that the hearing notice was sent both by email and physically to the home address.
65. The Tribunal noted that there was no response from the Appellant to the directions concerning using a computer and no further evidence that she had carried out a Covid-19 test.
66. On 23 February 2021 newly instructed representatives applied for the hearing to be adjourned because of difficulties getting further evidence and the need to secure attendance of witnesses.
67. On 24 February 2021 the Tribunal directed that it would hear the application orally on the first day of the appeal hearing and warned that if the application was refused the Tribunal would immediately proceed to hear the case.
68. Nevertheless on 1 March 2021 the Appellant by her then representatives applied for an adjournment and gave written reasons. The representative had been instructed that the Appellant had experienced severe Covid symptoms since 27 February 2021 and could not attend in person because she had to self-isolate and the representative passed on his instructions that the Appellant “cannot stay on the internet for a long time”.
69. At 1:30pm on 1 March 2021 the representative filed the Appellant’s third bundle by email and said that the Appellant, although unwell and unable to attend a full hearing, would attend remotely and no witnesses would attend.
70. On 2 March (the appointed hearing date) at 9 a.m. the Appellant emailed the Tribunal setting out reasons supporting her contention that the appeal could not proceed in her absence and attaching various documents. The only evidence relating to her physical condition was a note generated by the NHS that she had reported Covid symptoms and was required to self-isolate and a letter from a GP dated 10 December 2020 stating that he had recommended that she have various tests. These documents had already been submitted.
71. At paragraph 29 of the Decision and Reasons the Tribunal explained why it did not believe the Appellant’s claim that she was not fit to take part in the hearing. The Tribunal found it unlikely that a person would develop Covid symptoms so many times in such a short period of time. Further the Tribunal noted the coincidence in the timing as, on two occasions, the alleged symptoms were said to present days before a fixed hearing date and after other applications to adjourn had been refused, The Tribunal found the coincidences unbelievable. The Tribunal also drew adverse inference from the absence of independent evidence that the Appellant had carried out a Covid test significant and from the Appellant’s “history of deliberate non-compliance with Tribunal directions.”
72. The Tribunal explained at paragraph 30:
“After the conclusion of the appeal hearing the Appellant, on two occasions, emailed us directly asking us for a new asylum appeal. We did not seek the views of the Respondent as we formed the view that the information provided was not capable of having any effect on our decision to proceed in her absence”.
73. The request for a new hearing was not granted.
74. Some subsequent evidence was provided confirming contact with the general medical practitioner but there was no diagnosis or confirmation of Covid symptoms from an independent medical practitioner.
75. On 1 April 2022 the Appellant indicated that the Coronavirus lateral flow test was negative. The Tribunal said at paragraph 32:
“That she had carried out this test in relation to the third occasion she claimed to have Covid symptoms, did not, when considered with all the other evidence, alter our view about her credibility, where the interests of justice lay or the fairness of proceeding in her absence”.
76. The Tribunal then outlined the proceedings of a hearing in the absence of the Appellant’s witnesses. The Tribunal explained why it decided to continue the hearing without the Appellant’s witnesses.
77. By her representative the Appellant had provided details of six witnesses who were based in the United Kingdom. Five had provided witness statements but there was no statement from the sixth. It was submitted that the witnesses could not travel because of Covid restrictions and/or did not have the technology to participate remotely. The Tribunal was unimpressed. Attendance at court was permitted as an exception to general travel restrictions and the explanation for not being able to participate remotely was described as “vague”.
78. There were also witnesses in Greece. Five names had been given. One of them had been known to the Tribunal and was the Appellant’s legal representative in her criminal proceedings in Greece. The first time the others had been identified was on 23 February 2021.
79. The Tribunal noted that the hearing on 2 March was the tenth listing of the substantive appeal and there had been numerous directions for the service of the Appellant’s bundle and provision of the names of witnesses.
80. The Tribunal also noted that on 23 October 2019 the appeal came before Dr Hugo Storey sitting as a Judge of the First-tier Tribunal with First-tier Tribunal Judge Scott-Baker, both experienced Tribunal Judges, who ruled that there was no justification for the Appellant withholding the names of witnesses. On that occasion the Appellant’s Counsel argued that the names should not be disclosed until five days before the substantive hearing for fear of reprisals but the Tribunal found no merit in that contention.
81. It was explained that the witnesses who could not attend were reluctant to give evidence by video link for fear that the Greek authorities would intercept the link or otherwise discover that they had assisted the Appellant.
82. The Tribunal did not find these objections good reasons to adjourn the hearing. No witness statements had been provided and no good explanation had been given for such evidence not being provided sometime during the four years that the appeal was in the system.
83. At paragraph 36 the Tribunal said:
“Thus, the argument for an adjournment based on the inability of the Greek witnesses to give oral evidence was based on a false premise that, if they had been present, the Tribunal would necessarily have permitted these witnesses to give evidence in the absence of witness statements and in the absence of all of their identities having been disclosed to the Respondent prior to 23 February 2021”.
84. The Tribunal noted that it was unlikely that it would have permitted evidence to be called without supporting witness statements and it was unlikely that the Tribunal would have adjourned the hearing to permit oral evidence to be prepared and presented on a later occasion.
85. It was understood that people living in Greece could not travel to the United Kingdom but the Tribunal did not find it acceptable to adjourn to an unknown date when travel restrictions would end. Such a pre-condition was too open ended. Further, no effort had been made to explore the possibility of witnesses giving evidence, for example, from a secure location. International travel had been suspended or was at immediate risk of suspension but, for example, no request had been made to the British Embassy to give a secure video link. The Tribunal noted that it had been raised as long ago as 23 October 2019 and again in 2021 and again in October 2020 that witnesses feared giving evidence.
86. The Tribunal then explained that it refused to allow more time to get further evidence because of the time that had lapsed.
87. The Tribunal then dealt with the application for an adjournment based on the Appellant’s then solicitors, Kesar & Co, being instructed recently and the Appellant having allegedly been let down by her previous solicitors.
88. The Tribunal appreciated that Kesar & Co had been instructed on 11 February 2021.
89. Nevertheless the Tribunal noted that the Appellant had been in receipt of legal aid from an early stage. She had been represented by solicitors or Counsel on a direct access basis almost continuously since making her claim in 2014 and any gaps were a result of the Appellant losing confidence in her representatives and failing to obtain alternative representation. The Tribunal said at paragraph 40:
“This frequently led to new firms taking over the conduct of her case shortly before the substantive hearing was due to take place”.
90. The Tribunal noted that since starting her claim the Appellant had instructed nine different firms of solicitors and a number of barristers.
91. The Tribunal noted how on 12 April 2017 a firm of solicitors described as “well-known for their immigration work” notified the Tribunal that there had been a significant breakdown in the relationship and they were no longer acting. This firm of solicitors instructed barristers from “highly respected” chambers but on 17 October 2018 the Appellant wrote to a Resident Judge at Taylor House stating:
“I am really sad to say that [the] solicitors, due to the irreversible breach of trust by them, can no longer represent me at my asylum appeal”.
92. Many complaints were made including the Appellant being pressurised to signing a consent order in the High Court but the Tribunal reviewed the reply by that firm of solicitors and relevant judicial review documents and found no basis for the criticisms.
93. At an oral Case Management on 17 January 2019 a Designated Judge warned the Appellant that if she was still unrepresented she should expect the appeal to proceed. A substantive hearing was directed for 15 and 16 July 2019. On 6 July 2019 Counsel wrote to the Tribunal stating she had been instructed on the direct access basis on 20 June 2019. On 20 August 2019 the Appellant instructed another firm of solicitors and they withdrew on 10 December 2019, the day before the Appellant was supposed to have served evidence. On 21 February 2020 a new firm of solicitors informed the Tribunal they had been instructed a few days before. They withdrew on 10 March 2020. In May 2020 another firm of solicitors were instructed. They withdrew on 24 September 2020. The Appellant gave an explanation which did not impress the Tribunal.
94. At paragraph 42 the Tribunal said:
“Given the number of solicitors with whom [the Appellant] has been unable to maintain a working relationship, we concluded that the problem lies with her and not her legal representatives”.
95. The Tribunal also noted that core issues were unchanged and had been identified for some time.
96. The Tribunal then considered the expert report from a criminal and human rights lawyer in Greece.
97. The representatives stated that an expert had been identified and had communicated with the Appellant. The expert said that she said she had been contacted by previous solicitors in August 2020 when they were in funds. However, she heard no more from those solicitors and had not started to write the report. She said she would prepare a report if she was given time and instructions.
98. However, the Tribunal noted that the information provided by the expert contradicted other information received in relation to the preparation of the report by that expert. The Tribunal had previously been led to believe that the expert was part-way through her report and expected to finalise it in mid-January 2021. The Tribunal noted that solicitors had said in July 2020 that they were awaiting legal aid in order to instruct the expert. Subsequently it was claimed that the expert was “in the process of preparing” a report and then there was an email directly from the Appellant saying the expert expected to finalise the report by mid-January 2021. No explanation was given for not instructing the expert at an earlier stage.
99. The Tribunal was just not prepared to allow more time.
100. The Tribunal then considered the application for adjournment based on the desire to obtain a transcript of the judgment of the Greek court sentencing her to thirteen years’ imprisonment. The problem there was that at a hearing on 16 July 2020 the Appellant’s Counsel said that the Appellant was in possession of an extract of the judgment and the representatives were awaiting a full transcript. The Tribunal indicated that even sight of the extract would have been of assistance as it might confirm the length of sentence. The Tribunal saw no point in waiting for a transcript because it did not see how it would help.
101. It was the Appellant’s contention that the length of sentence was an example of persecution. However the Tribunal noted that the only evidence that any such sentence had been imposed was in the form of an untranslated document in the third bundle. That had been in the Appellant’s possession since at least 6 July 2020 and that no translation had been prepared. Judgment was handed down on 6 March 2020 and the Tribunal noted there was no statement from the Appellant’s criminal lawyer in the bundle.
102. There was then an application for adjournment based on Article 3 prison conditions. The Appellant wanted to produce expert evidence from a consultant clinical psychologist who was named, and a report on prison conditions in Greece from an expert who had given evidence during the extradition proceeding in the High Court on the conditions in the New Wing of Korydallos Women’s Prison. It was accepted that the evidence then was that there was no “Article 3 risk” in women’s prisons in Greece but the expert wanted to investigate what healthcare was available.
103. The Tribunal would not give an adjournment for that reason. It said that the broad issues in the case had been clear from the commencement of the asylum appeal. It is clearly the Appellant’s case that detention in prison would breach her Article 3 rights but assurances had been given to the High Court which had been accepted about prison conditions and no explanation was given for not obtaining contrary evidence sooner.
104. The contention that the Appellant was suffering from anxiety and depression is not new. As far back as 2013 a medical practitioner had prescribed an anti-depressant and noted that the Appellant was “very keen for a private referral”. There was also a letter from the GP of 30 September 2015 setting out the risk factors the Appellant faces for retinal detachment. All of these things predated the extradition proceedings.
105. Evidence of the Appellant having severe anxiety and depression was described as “very limited”. It came in a letter dated 9 February 2021 from the same GP who wrote the letter of September 2015 in identical terms except he recorded the Appellant suffered clinically moderate to severe anxiety and depression. The general medical practitioner stated that the Appellant had been referred to a psychiatrist and the initial assessment was enclosed but not provided to the Tribunal.
106. The Tribunal noted that the Appellant’s co-operation would be necessary through the preparation of reports. She would have to attend consultations with the psychiatrist and the expert but, given the history of non-co-operation, the Tribunal had no confidence that delaying the hearing would lead to the case being prepared any better.
107. The Appellant’s representative then raised the issue of a new matter. It was said that the Appellant’s sentence of thirteen year’s imprisonment, allegedly handed down in March 2020 for EAW 5, was a “new matter” within the meaning of Section 85 of the 2002 Act. The Secretary of State had not given consent or dealt with it as a supplementary issue.
108. The Tribunal declined to adjourn. The Tribunal ruled that it is not a new matter. Unknown to her then representative, the Appellant had previously instructed Counsel at a hearing on 16 July 2020 to submit that it was not a new matter because it was just further evidence as a continuing persecution.
109. The Home Office representative added that if it was a new matter then he gave consent.
110. The Appellant’s representative then said it was a new matter because it “changes the language of the asylum claim”. It was an unlawful sentence and whatever was intended it was persecutory. He said it was insufficient to give consent for it to become a new matter. Rather the Secretary of State should set out her position in writing.
111. The Tribunal described that submission as “bold” and did not accept it. If it had happened as the Appellant alleged then it was arguably a further example of politically motivated oppression, which is how the Appellant presented it.
112. The Tribunal also noted there was no independent evidence of the sentence of thirteen years having been imposed, still less that such a sentence was manifestly excessive for whatever crime was proved.
113. The Appellant’s representative then applied for disclosure.
114. The Appellant had made repeated applications during the course of Case Management for matters to be disclosed. The applications had been refused and reasons given.
115. The Appellant’s representative had asked to renew an application to the Respondent concerning information in closed correspondence with the Greek authorities that led to the Respondent indicating, in a letter to Mr Jeremy Corbyn MP, dated 13 October 2015, that the Appellant had been sentenced to 100 months’ imprisonment for misdemeanour offences. Oral argument was heard on those issues by Judges Storey and Scott-Baker and written reasons for refusing the application were provided on 25 October 2019.
116. At an oral Case Management hearing on 15 May 2020 the Tribunal indicated that it was minded to permit the Appellant to reargue the point as Counsel for the Appellant made submissions that the Appellant wished to raise an additional argument under Council Framework Decision 2009/315/HJA because Judges Storey and Scott-Baker had concluded the Respondent was bound by the terms of the decision.
117. The Tribunal heard oral argument on the point at a Case Management hearing on 15 August 2020 when the Appellant was represented by Counsel and written reasons were given for refusing it.
118. The Tribunal explained that it seemed that the Appellant had been made aware of evidence from the Greek authorities showing that she had been sent to prison for eight years and four months’ which is, (obviously) 100 months. Apparently it was the Appellant’s case that she had been sentenced to 100 months’ imprisonment rather than the 80 months imposed by the court of first instance in January 2014 and, according to the Appellant, this tended to support her case that assurances given by the Greek authorities to the High Court or Tribunal could not be relied upon.
119. The difficulty with the application is that the information said to show that the sentence was 100 rather than 80 months was disclosed to the United Kingdom authorities solely for use in the extradition proceedings. It was from a privileged source and more details could not be disclosed by the United Kingdom authorities. It was also pointed out that the Appellant could apply for her criminal record with the Greek authorities to be disclosed but apparently had not done that.
120. It was found that the arguments were not new and there was no merit in granting an adjournment because of them.
121. The Tribunal then considered an application for permission to adduce a third bundle.
122. It was served on 1 March 2021 which was late. The application was opposed on predictable grounds. The Secretary of State had not had an opportunity to consider it; the Appellant had repeatedly failed to comply with directions for service of her evidence and the bundle contained only a brief witness statement described as a draft and no conclusions were in the expert report.
123. The Tribunal permitted some background material to be adduced but nothing else.
124. The Tribunal acknowledged there were oral submissions supplementing skeleton arguments described as “well drafted”.
125. The Tribunal then indicated the evidence it had considered and outlined all the items at paragraph 69. Essentially, although this is no reason to be critical, it was the usual bundle that can be expected in asylum appeals.
126. The case was outlined.
127. It was the Appellant’s case that she had been persecuted whilst working as a judge in Greece. It was her case she began as a judge in 1989 and soon in her career had conflicts with the establishment which she said led to her persecution.
128. She was removed from her first professional appointment. She says that she had reported colleagues who were suspected of corruption and, additionally, her “left wing approach” offended insurance companies who were frequently defendants before her. Further, on one occasion she refused to dismiss a teacher because she believed the teacher was targeted because of his communist beliefs rather than his conduct.
129. Nevertheless she was selected to serve a secondment at the European Court of Justice and later at the European Commission. This ended in 1998 and she resumed her career as a judge in Greece, this time in the traffic division of the court of first instance in Athens.
130. The Appellant asserted that on one occasion her car had been “surprisingly and suspiciously vandalised” and she attributed this to persecution of some kind.
131. In 2000 she was appointed as an investigative judge in the narcotics division but she had sympathy with addicts and favoured rehabilitation over prison sentences and this brought her into conflict with the police and public prosecutors.
132. The Appellant gave details of one particular case which she thought led to her being persecuted. The circumstances are outlined in some detail. The defendant in criminal proceedings was a medical practitioner who owned a private clinic in Athens that treated drug addicts. A number of business people had an interest in acquiring his clinic and he was arrested on his yacht and charged with possession of cocaine. It was widely believed that the drugs were “planted”. Her conduct of the case was controversial. After that she maintained there was something of a campaign against her. Edited and altered recordings were broadcast tending to show her engaging in corrupt acts as a judge. She received anonymous telephone calls at home from someone identifying himself as a colleague but refusing to give his name. She was invited to attend disciplinary hearings but did not and was dismissed. She then had trouble because it was said she had not served copies of her financial statements.
133. She was visited by prominent Greek businessmen who claimed to know that the apparently incriminating recordings had been manipulated and advised her to leave Greece promptly. In July 2005 she received some kind of warning from the Greek police and later in July 2005 she held a press conference at the airport in Athens to inform the public of what was happening to her.
134. As indicated, she arrived in the United Kingdom and eventually found herself subject to extradition proceedings. As I understand it, extradition on European Arrest Warrants was ordered by the District Judge and that decision challenged by judicial review.
135. The first judgment of the High Court was a decision of Rafferty LJ and Underhill LJ. According to the First-tier Tribunal, EAWs 1 to 4 were quashed but not for reasons connected with the Appellant’s claim to be a victim of persecution. EAW 5 sought the Appellant’s extradition for a number of misdemeanour offences for which she had been convicted and sentenced and a number of felony charges for which she awaited trial in Greece. There were a number of co-defendants in relation to all matters. Five of the co-defendants had been convicted on various charges. Extradition was opposed on three grounds any of which would have barred extradition under the Extradition Act 2003. The High Court in particular relied on assurances by the public prosecutor in the Athens Court of Appeal that her sentence would be reduced to twenty months’ imprisonment and that seventeen months 21 days already served on remand would be taken into account.
136. However, there was still a felony charge to be dealt with. The High Court was not persuaded there were substantial grounds for believing that EAW 5 was issued to punish the Appellant for her opinions. The High Court noted the Appellant was “outspoken” but it did not follow from that that she had annoyed people into persecuting her. The High Court found no evidence other than from the Appellant’s own mouth, and that was unpersuasive, of any political motivation on the part of the prosecutor.
137. The Appellant had been late in making her submissions of expert evidence regarding prison conditions in Greece and the “Article 3 point” was determined by another division of the High Court, that is Aikens LJ and Nicholl J. Her appeal was dismissed. The High Court particularly took assurances from the Ministry of Justice concerning prison conditions.
138. The Tribunal then directed itself on the legal framework it had to follow including appropriate standard directions concerning the burden of proof in an asylum appeal.
139. The Tribunal addressed itself to the approach taken to the findings of the High Court. The Tribunal decided it was to follow the Devaseelan guidelines (Devaseelan [2003] Imm AR 1) and precise details of the directions are given at paragraph 93.
140. The Tribunal regarded the decision of the High Court as a starting point for its findings but undertook to examine with care the submissions from the Appellant that events had changed.
141. The Tribunal considered and set out an extract from the judgement of the Court of Appeal in SSHD v Devani [2020] EWCA Civ 612. It then directed itself that the assurances from the Greek authorities given to the High Court can be relied upon and that evidence of some quality would be needed to displace the presumption given that the government issuing the assurances was a member state of the Council of Europe.
142. The Tribunal dismissed the appeal.
143. It set out its findings.
144. In particular it found nothing to revoke the presumption that the assurances given to the High Court could not be relied on. Neither did it find any reason to go behind the assurances that the Appellant would only serve 24 days of the sentence still outstanding for misdemeanour offences. The Tribunal was not particularly concerned that there was some discrepancy in the evidence about whether the Appellant had been sentenced to terms of 80 months or 100 months. It was the Appellant’s own evidence that she had been sentenced to 80 months but she had not shown that was persecutory.
145. The Tribunal did, however, comment adversely on the absence of any evidence from the lawyer in Greece to put the matter beyond argument.
146. The Tribunal acknowledged expressly at paragraph 109 that the Appellant’s skeleton argument alleged that the Greek authorities had made a false statement that the 80 month sentence was time barred. The Tribunal said:
“There is no evidence before us to substantiate either the claim that such an assurance was given or that the assurance was false and so we consider it not further.”
147. The Tribunal looked at the lack of reply to the Note Verbale.
148. The British authorities had made a formal request for the assistance of the Greek authorities in obtaining transcripts of the judgment of the decisions of the Greek courts following the trials of eleven defendants. Judges Storey and Scott-Baker had directed the Secretary of State to “use his best endeavours in order to obtain the eleven judgments” but none had been produced.
149. Paragraph 111 of the Decision and Reasons explains that point. It said:
“As we understand the Appellant’s case, as articulated through her instructed Counsel at a number of case management hearings, eight of these judgements represent the verdicts for individuals who had stood trial on felony charges. In respect of each defendant, the Appellant had been the Investigative Judge who had decided, contrary to the wishes of the prosecutor, not to remand the defendant in custody pending trial. Whilst these defendants were charged with felony offences. The Appellant’s argument is that this is evidence that her decision (sic, detention?) on remand was justified because, as a matter of law, a defendant can only be remanded in custody if facing felony charges. It is her case that the misdemeanour offences which form the conviction element of EAW5 relate, at least in part, to these eight defendants. Consequently, the lack of reply to the Note Verbale is a deliberate act designed to frustrate the Appellant’s attempts to obtain evidence of her innocence and as such, is both an act of bad faith and evidence of on-going political persecution.”
150. The Tribunal found no basis for inferring any malign motivation on the part of the prosecuting authorities in Greece and gave reasons for this finding.
151. Without help from the Appellant, the Tribunal compared the name on the Note Verbale with documents in the Respondent’s extradition bundle and found that seven of the names in the Note Verbale matched name on the EAW. This, the Tribunal found, showed that the Appellant’s involvement in criminal proceedings relating to those defendants did form, at least in part, the basis of the misdemeanour offences in EAW5. The Tribunal point was that it was able to see a clear basis for prosecution that was not persecutory.
152. The Tribunal accepted that requests for information between foreign jurisdictions can be a slow process. It noted how Judges Storey and Scott-Baker had found the Appellant’s representatives less helpful than they might have been when looking for evidence about the other defendants [115(2)]. The Tribunal also found the evidence allegedly contrived by the authorities in Greece to be of minimal value.
153. The Tribunal then looked at the trial for the felony offences. The Tribunal noted that it was the Appellant’s case that, following the conclusion of the extradition proceedings, she was tried her in her absence for a felony under EAW 5. This was said to be persecutory and she did not have a fair trial. The Tribunal did not accept that such a trial had taken place. The only evidence adduced was a hearsay statement from a mortgage adviser. There was no confirmatory evidence from someone apparently expert in Greek law and particularly not her lawyers in Greece. This omission was described by the Tribunal as “inexplicable” because it had been asserted at a Case Management hearing on 16 July 2020 that the Appellant’s representatives had the necessary materials. However, the Tribunal directed itself that even if it was wrong on the fundamental finding that there was no such conviction the Tribunal found that there was no evidence that the Appellant had been prevented from making submissions at all or could not have taken part by video link or could not ask to reopen the case in the event of a return to Greece.
154. Clearly the Tribunal found nothing persecutory or oppressive about the alleged trial.
155. The Tribunal noted that the High Court had heard evidence as well as argument. Like the High Court, the Tribunal found no reliable evidence that the Appellant had been sentenced to thirteen years’ imprisonment. Further, the Appellant had not produced evidence that such a sentence would be unlawful or manifestly excessive.
156. Similarly there was no evidence that the sentence of 80 months was manifestly excessive.
157. The Tribunal then found that the evidence did not show that the Appellant had been subjected to threats, intimidation or adverse attention from the Greek authorities or non-state agents whilst in the United Kingdom.
158. The Appellant’s claim to the contrary came through a witness statement from the Appellant’s long time landlord. She expressed the opinion that the Appellant would not have a fair trial in Greece. She recorded how at Christmas 2017 the Appellant telephoned her in a state of panic and asked her to have security cameras installed in the home. The Appellant was aware of suspicious telephone calls and suspicious cars parked outside the house that were drawn to the witness’s attention.
159. The Appellant said she had received threatening information from a previous security agent and recorded details of an encounter with a stranger looking for the Appellant. There was also a report from the Appellant to the police asking to investigate the crime of sending letters in the Appellant’s own statement to the Victim Support.
160. The Tribunal explained it gave very little weight to the landlady’s evidence. Most of the things reported came initially from the Appellant and looked at objectively the things complained of were hardly malign.
161. The Tribunal did not believe that the Appellant had been truthful with her landlady. The alleged threats and associated behaviour started after the protection claim had been refused. They could be true but the Appellant had a motive to draw attention to such events or make them up completely. There were no detailed witness statement or opportunity for cross-examination.
162. The Tribunal did not accept that if there had been contact from a Greek intelligence officer in Christmas 2017 the matter would not have been reported to the police until April 2019.
163. It was the Appellant’s case that she contacted the police in 2019 because a man visited her home. The Tribunal did not accept that the alleged visit in 2019 would provoke a report when the visit in 2017 did not.
164. The Tribunal then looked at the evidence concerning the Appellant’s friends.
165. The Tribunal noted evidence from people who had known her in the United Kingdom and spoke well of her as a friend but anything they said about asylum and extradition appeared to come from what the Appellant had told them. In any event, it was evidence that could have been made available in the High Court but was of truly little value. Repetition does not make something true.
166. There was a witness statement from a postgraduate student of Birkbeck University who claimed to have researched the Appellant’s case and concluded that the extradition request was politically motivated. The witness did not hold himself out as an expert and did not attend the hearing. The Tribunal gave the evidence very little weight. I allow myself that observation in this part of my judgment that, far from being an error of law, I do not see how the Tribunal could have evaluated the evidence differently.
167. There is then a review of evidence of a journalist but it was based on a translation of an article and there was nothing to help the Tribunal understand the writer’s skills as a translator.
168. The Tribunal then directed itself to Article 22 of the Asylum Procedures Directive in order to consider the contention that there had been an important breach of confidentiality because the Appellant had been identified in the Note Verbale. The Tribunal could not see how this disclosure suggested bad faith on the part of the Greek authorities in a way that made it at all sensible to doubt their serious assurances about the kind of detention that the Appellant would experience in the event of her return or at all.
169. Further, the Tribunal noted it was a letter from Mr Jeremy Corbyn MP, written on the Appellant’s behalf, that identified the Appellant as an asylum seeker. Still more significantly, it was the Appellant’s own case that she had announced publicly her intention to leave Greece and travel to the United Kingdom because she felt under threat. The Tribunal could not see how her position had been disadvantaged by her identity becoming known as a result of correspondence and enquiries. It was already in the public domain.
170. The Tribunal then looked at prison conditions but again found nothing to justify a finding of bad faith on the part of the Greek authorities.
171. The Tribunal was aware of evidence that Greek prisons have been found to be increasingly violent but there was no evidence about conditions in the New Wing of the women’s prison at Korydallos other than of the most superficial kind and certainly nothing that began to indicate that the mere fact of being detained there would be contrary to any rights.
172. The Tribunal was aware of some evidence that post-dated the hearing in the High Court but found no reason to think it changed matters at all significantly.
173. The Tribunal looked at reports on staffing levels but found nothing to support a conclusion that it had been reduced to the point that it was not safe. The Tribunal found no significant evidence of a decline in healthcare provisions.
174. It came down to a very simple point; the Tribunal found that the Appellant had wholly failed to show any persecutory ill-treatment or a risk of future persecutory ill-treatment and found that the factual basis for the decision that she could be lawfully extradited, which necessarily encompassed possible human rights violations in the event of a return, had not changed in any significant way since the High Court had given its rulings.
175. It dismissed the appeal.
Grant of Permission to Appeal to the Upper Tribunal
176. The First-tier Tribunal’s grant of permission shows little engagement with the Decision and Reasons or the grounds and, other than noting that it put the matter before the Upper Tribunal, it is kindest to make no further comment.

Grounds of Appeal to the Upper Tribunal
177. I consider now the grounds on which permission was granted.
178. They were signed by the Appellant’s then solicitors and extend to 124 paragraphs over some 40 pages. Whilst the typing is well spaced this is an extraordinary long document.
179. It begins by identifying the decision. The grounds are summarised at paragraph 3 and allege, first, that the First-tier Tribunal erred by making findings without evidential foundation or without considering properly the evidence or making a statement of fact and making findings not in line with the evidence or failing to assess the significance of “intended material”.
180. Second, the Tribunal is said to have erred by failing to assess the evidence in the round or placing too much weight on a single issue or not placing weight on a particular issue, and finally, third, of procedural unfairness.
181. At paragraph 4 the grounds criticise the Tribunal because it “unfairly blamed the Appellant” for the delays then characterising her as someone who contributed to delay.
182. Paragraphs 6 to 14 come under the heading “Historic delays: crucial evidence missing and judicial review against the Home Office”.
183. These paragraphs criticise the Tribunal for blaming the Appellant for delays. The Appellant recognises there were “strong practical and Case Management reasons” against repeated adjournment requests but she was still entitled to a fair hearing and did not get one. The main driver for the adjournment requests, it was claimed, was that evidence was not available. Much was made of the failure to get copies of the judgments which she said led to her being sentenced to prison for 80 months. She was also concerned about the suggestion she had been sent to prison for 100 months (eight years and four months) and asserted a “strong legal right” to know the identity of the person who had given the wrong information. She wanted to present her case properly and it was contended had been frustrated by others.
184. Paragraphs 15 through to 24 come under the heading “Recent delays: Covid and IT problems”.
185. At paragraph 15 it is asserted that the First-tier Tribunal was made aware that the Appellant claimed to suffer from Covid two days before writing on 9 November 2020 and provided a self-isolation note and the CMR was subsequently adjourned. A further adjournment request was made and granted on 4 December 2020 mainly because of IT failures. The Appellant pointed out that she never claimed that she could not ever access emails but that she was having trouble and made a request for telephone calls for matters of urgency.
186. The Appellant took exception to being found dishonest when it was her case that she had initiated a request for contact by telephone that had not happened. She said that the post got lost. The Tribunal was wrong to say that she deliberately frustrated proceedings. She had acted responsibly in seeking to follow guidance about Covid symptoms. The Tribunal did not have the medical competence to rule as it did on her unreliability.
187. The Tribunal is criticised for commenting on the “coincidence of the timing of the alleged symptoms, namely that they occurred days before the substantive appeals ... and after an application to adjourn”. There was a lot of Covid about and she had contacted her doctor.
188. It said that the Appellant had shown the Tribunal that she requested a test to be delivered to her home, it was unfair to say she was not co-operating. She continued to suffer Covid symptoms close to the hearing day of 2 March 2020. She was not fit to participate remotely. In part she was suffering from diarrhoea. It was wrong to say the medical evidence just echoed what she had said, the GP can be expected to conduct her own checks. The determination at paragraph 31 dismissing the letter is therefore fundamentally unfair.
189. I interrupt the analysis at this point just to consider what was said at paragraph 31. It does, I find, undermine the criticism substantially. The Tribunal stated:
“The letter did no more [than] record that the Appellant had seen her GP on 11 March 2001 and she had told him that she had been experiencing Covid symptoms between 28 February and 6 March. It did not contain evidence the GP himself had observed the alleged symptoms”.
190. Paragraphs 25 through to 38 are headed “Proceeding in the Appellant’s absence” and embody the criticism that the Appellant was fundamentally disbelieved. That decision, it was said, should not have been reached when she was not present to deal with the case. The Appellant needed to be there to answer the points. She was the most important witness in her case and her case had been told consistently.
191. Paragraphs 33 to 37 criticise the Tribunal proceeding in the absence of the Appellant’s witnesses. She regarded them as crucial to her case. Her witnesses included “high profile individuals” including an expert in Greek criminal law and an experienced judge in Greece and a former member of the Greek parliament and a person acquitted of the same offence as the Appellant. Their evidence was described as “crucial”. They had indicated they were willing to attend at their expense to give oral evidence but wanted anonymity.
192. Paragraphs 33 through to 42 were headed “Insistence on disclosure of Greek witnesses’ identities”.
193. The Appellant said that she was unable to provide them; she explained that the Greek witnesses were not willing to participate if they were not promised anonymity and they would only provide oral evidence. This did not extend to a particular witness who had done an investigation and published it on the internet.
194. She made it clear why she could not disclose their names in advance. She did not trust the Home Office to respect anonymity especially considering the previous letter to Mr Jeremy Corbyn MP “containing fabricated allegations against the Appellant”. She regarded this as something that “suggested strong political interferences”.
195. There had been no comment in the Decision on the claim that witnesses needed to be anonymous and it was grossly unfair for the First-tier Tribunal not to recognise the difficulties. It was wrong to say no explanation had been provided for not giving more details as the Tribunal did at paragraph 36.
196. Paragraphs 43 to 47 are headed “Greek witnesses’ electronic evidence”.
197. They were highly educated, high profile individuals and their anonymity could not be protected in any way other than personally attending the hearing. They would not be safe in the British Embassy because of the number of Greek staff that worked there.
198. Paragraphs 48 through to 51 are headed “UK based (character) witness”.
199. People were not comfortable because of government travel restrictions. One witness said particularly that he had asthma and could not travel. Another was 84 years old and did not have access to computer equipment, that they had a baby to look after.
200. The Tribunal, it was said, should have been more sympathetic.
201. Paragraphs 38 to 54 are headed “Paragraph 38 to 54: Obtaining further evidence”. This is headed above paragraphs 52 through to 66. There was no evidence to justify the conclusion that the Appellant was not co-operating. It was correct that she had “disinstructed” a firm of solicitors who are particularly well-known for their work but she insisted that she had been bullied into signing her consent order and did not have confidence in them. There is only one firm that she had “sacked”. Other firms did not feel able to assist.
202. Paragraphs 67 through to 74 are headed “Paragraph 44 to 46 Expert report”.
203. It was wrong to say the report is inadmissible. It was not the Appellant’s fault that the instructions had been taken late. Neither could the Appellant be responsible for the delays in preparation. There were funding difficulties. The report was not completed but there was a preliminary report. It was not the Appellant’s fault that the Greek judgments were not forthcoming.
204. Paragraphs 75 through to 82 are headed “Paragraph 47 to 49 Transcript of the thirteen year imprisonment judgment of the Greek courts”. It is the Appellant’s case that the First-tier Tribunal failed to give to any importance at any stage to the decision of the Athens Appeal Court judgment sentencing her to thirteen years’ imprisonment in a judgment dated 6 March 2020. It was her case (see paragraph 76) that:
“Even before receiving a copy of a short extract of this thirteen year sentence judgment, her team took immediate and proactive steps in amending their Grounds of Appeal to 10 June 2020 to notify the FtT of this important development. The Appellant clarified in the subsequent CMR of 16 July 2020 that a full copy of this judgment was being sought and that it was crucial to her claim that it would show in detail the ongoing political persecution, vendetta and hostility against the Appellant”.
205. She regarded this as very important evidence and disagreed that it was sufficient to rely on it to deal with the length of sentence, a full copy was necessary. It is interesting to note, it was said, that all those charged apart from her had been acquitted.
206. Paragraphs 83 to 85 are headed “Expert opinion on this report”.
207. There was a preliminary report stating unequivocally that the expert thought the Appellant should have been acquitted but no regard seemed to have been given to this.
208. Paragraphs 86 through to 100 are headed “Paragraphs 109, 132 and 133 Sentence of 80 months’ imprisonment.
209. It was wrong to say that there was no evidence that this was disproportionate and persecutory. There was commentary suggesting that it was. The 80 months’ sentence was fresh evidence not considered by the High Court. It did not come until after the High Court judgment was promulgated on 6 March 2016. She regarded this as the “strongest piece of evidence in her asylum claim”. She said the entire sentence was enforceable against her and it was wrong to say that other matters would be taken into account. The Tribunal chaired by Dr Storey sitting as a Judge of the First-tier Tribunal regarded it as important evidence and it was a “grave error in law” to dismiss it as the Tribunal did. She was the only judge to be prosecuted for breach of duty of care. She should not have been prosecuted at all and the sentence was invalid. She said that the First-tier Tribunal misunderstood the judgment of the High Court on 14 July 2014, 6 March 2015. The High Court were talking about different sentences [paragraph 96]. She said that “crucial evidence” submitted to the First-tier Tribunal was totally overlooked. This evidence appears to be a witness statement of a commentator [paragraph 98B] containing a line by line analysis.
210. She appreciated that Dr Storey’s Tribunal had asked for translated copies of the entire Athens judgment. She could not provide it because her solicitor had withdrawn.
211. Paragraphs 101 and 102 are headed “Inadmissibility of expert report”.
212. She said she had a legitimate expectation that she would be able to adduce expert report to further her claim. She did not have a fair trial because what was offered was ruled inadmissible. It was very pertinent that the preliminary report confirmed the assertion there was nothing in the judgments that indicated she would only serve 24 days.
213. Paragraphs 103 and 104 are headed “Paragraphs 134 to 143 Threat from state and non-state actors whilst in the UK”.
214. She said the Tribunal only concluded that she had not been subject to such treatment because it had not assessed the evidence properly.
215. Paragraphs 105 and 106 are headed “Mrs M---s’ witness statement”. It is procedurally unfair to place little weight on this statement. The witness was the landlady of the Appellant and had no reason to be biased or unfair in any way, it is also factually wrong to say it only repeated information that the Appellant had disclosed to her. It referred to a stranger visiting the Appellant’s home which had been told to her by another tenant.
216. Paragraph 107 is headed “The applicant’s account of threats to her life”. This evidence was rejected for no adequate reasoning. Paragraph 108 is itself headed “(1) The claims made by the Appellant to her landlady were made after her appeal was lodged, so she had a motive to lie to create evidence, she said this was just wrong. If the Appellant wanted to lie she would have wanted to lie at an earlier stage”. Paragraph 110 is headed “(2) The Appellant has not provided a witness statement detailing those events nor attended the appeal to be cross-examined”. She complained about not being allowed to attend because the hearing was not listed when she was available.
217. Paragraph 112 appears to go on from 113 through to 116 and is headed “(3) The Appellant’s claim to have experienced these events around Christmas 2017, including a specific threat from a former member of the Greek Intelligence Services, is inconsistent with her not reporting this activity to the police until April 2019”.
218. This was described simply as incorrect. The Appellant’s legal representatives did write to the Metropolitan Police in November 2017 in a letter entitled “Potential threat to life” and a follow-up made on 24 November 2021. The letters were submitted to the Home Office and the First-tier Tribunal and were disregarded. The Appellant said she had indeed been interviewed by the police following the receipt of the letter from Wilsons and the police had not challenged her credibility.
219. Paragraph 117 appears to relate to the remaining paragraphs, 118 through to 121 and says:
“The event that immediately preceded the Appellant contacting the police and Victim Support in April 2019, was the visit of a man to her home. If this visitor was really uninvited and a threat to the Appellant, it is inconsistent with the fact that neither the police nor Victim Support had recorded that the Appellant had reported this incident to them”.
220. Again it was the Appellant’s case that there was an error of fact. Victim Support provided a letter dated 18 June 2019 confirming she had disclosed everything to the police and no reference was made to the crime number. He described this as “gravely unfair and unreasonable not to consider the evidence from Victim Support when discounting her story. The Tribunal never took interest in the threats to her life”.
Secretary of State’s Response
221. The Respondent’s answers to these points comes in a skeleton argument signed by Mr Fletcher and dated 8 March 2022.
222. I summarise that now.
223. At paragraph 3 the Appellant’s grounds of appeal are summarised into three points. At first it is said the hearing was procedurally unfair, second it was said that the decision to refuse to adjourn was one that could not be taken by a reasonable First-tier Tribunal based on the material before it and, third, that the substantive refusal of the appeal was a decision that no reasonable First-tier Tribunal could reach on the evidence before it. It is noted at paragraph 4 that the Appellant did not challenge the legal tests adopted.
224. The Respondent repeated this theme at paragraph 5 pointing out that “at no point” does the Appellant challenge or dispute the factual background and cites no law.
225. It is the Respondent’s case that there is no procedural unfairness. The Appellant was represented at different stages of proceedings and the First-tier Tribunal gave appropriate consideration to the submissions made before reaching the conclusion it did.
226. The Respondent maintained that, given the history of the case and the repeated failures to progress the decision to adjourn was “within a range of reasonable determinations open to the FtT”.
227. The conclusions of the First-tier Tribunal were open to it given the lead given by the High Court. The grounds of appeal protest but identify no arguable error of law. The skeleton argument also complained that the Appellant had not linked her protestations to the evidence bundle.
228. The skeleton argument then summarises the issues in the substantive appeal.
229. At paragraph 8 the skeleton argument sets out a useful chronology with the Appellant’s claim dating back to 23 April 2014 when she attended an asylum screening interview having made a protection and human rights claim based on persecution and Article 3 breach based on prison conditions.
230. The skeleton argument then turns to the adjournment application. The skeleton argument contends that it is difficult to discern the alleged legal error in the decision to refuse the adjournment. There was no challenge to the First-tier Tribunal’s power to adjourn or refuse to adjourn and does not suggest that the First-tier Tribunal’s summary of its reasons and the grounds for seeking the adjournment and its reasons for refusing them are not set out clearly and accurately. It is not suggested that the Appellant could not present her arguments. She was not excluded or the points were not taken. There was a discretion in the First-tier Tribunal and the Tribunal rationally concluded it was fair and in the interests of justice to proceed. The Tribunal recognised that the Appellant was entitled to be at the hearing even though she had not prepared a statement. There was no witness statement from witnesses. It was hard to understand why that was the case. Coronavirus restrictions did not prevent travel to court and the evidence that there were technological problems preventing a statement being taken were found to be vague. Those decisions were open to the Tribunal.
231. The Tribunal gave specific consideration to the position of a Greek witness particularly at paragraphs 36 and 37. The Appellant had not sought permission to adduce evidence from the witness. An adjournment would be to an unknown date. There was no indication the Appellant had even explored the possibility of attending remotely.
232. The Tribunal was entitled to refuse the adjournment in all the circumstances. It was particularly open to the Tribunal to conclude that an adjournment would not secure an effective appeal. Reasons were given and proper consideration shown. The skeleton argument referred to paragraph 43.
233. The Tribunal was entitled to consider that the Appellant had expressed an intention to obtain evidence in 2017 and was told about the ability to the expert to provide a report at a timescale that was inconsistent with previous submissions.
234. At paragraph 20 it was contended that the First-tier Tribunal was entitled to refuse to adjourn the appeal for the Appellant to get a transcript of the Greek proceedings concerning her thirteen year sentence. The Tribunal was entitled to take into consideration the Appellant had told the Tribunal in 2020 that she had extracts which confirmed the length of sentence and there was no timetable provided for when a full transcript would be available. The Tribunal was entitled to lack confidence in the submission that the position would be any better if more time was given especially as there was no witness statement from the Greek lawyer.
235. The skeleton argument notes at paragraph 21 that the Appellant did not complain about the findings in paragraphs 50 and 68 including the finding that the Tribunal decided not to adjourn to obtain evidence on prison conditions, that the thirteen year sentence if proved was not a new matter as indeed the Appellant’s Counsel had argued on an earlier occasion, that the First-tier Tribunal rejected further disclosure applications on the basis that there had already been one ruling on the same and no new arguments were advanced, and that the First-tier Tribunal had ruled it would not permit the Appellant to adduce a third bundle except where admissions were agreed.
236. In summary, it was contended that the Appellant’s grounds in relation to the decision on the adjournment were no more than a disagreement and wholly failed to support the allegation that the proceedings were in any way conducted unfairly. The grounds then move on to look at the challenge to the substantive decision.
237. The section headed “Grounds challenging the FtT’s substantive decision” in the Respondent’s skeleton argument essentially says that there is no challenge to the underlying facts that inform the decision, no allegation of irrationality and really nothing that begins to look like an error of law.
238. The skeleton argument points out that the Appellant started with a disadvantage of having two decisions of the High Court that ruled against her and the grounds of appeal to the Upper Tribunal point to no strands of evidence or arguments advanced before the First-tier Tribunal that were ignored or irrationally considered. Rather, the reasons are set out “comprehensively”.
239. In particular it is alleged that the First-tier Tribunal was entitled to find that the evidence did not displace the presumption of good faith on the part of the Greek authorities and with that any argument based on Article 3 breach has collapsed.
240. Paragraph 32 perhaps requires a little more consideration. The Respondent said:
“The FtT was entitled to reject the submission that the 80 months sentence was disproportionate or politically motivated. The FtT noted that in October 2019 it was stated that the judgment and sentence was in possession of A but that it had not been translated [JFtT para 103] and the FtT further noted that neither the judgment or a translated judgment was in the evidence before the Tribunal [JFtT para 105]. The FtT was entitled to place little weight on the letter of Jeremy Corbyn MP as to the length of sentence [JFtT para 108]. Further and in any event the FtT was entitled to consider that the length of sentence was not disproportionate given the seriousness of the offences as described in the High Court judgment [JFtT para 133]”.
241. Further, it was said the First-tier Tribunal was entitled to find the evidence did not demonstrate there had been threats against the Appellant in the United Kingdom, rather the evidence was properly considered and rational conclusions reached.
242. I turn to paragraph 35 shortly. Paragraph 36 simply repeats that there was no evidence of bad faith on the part of the Greek authorities that could possibly support a finding that there was a risk to Article 3 rights.
243. Paragraph 35 deals with grounds 4 and 5 in the notice of appeal. This refers back to paragraphs 149–152 of the First-tier Tribunal in the Decision and Reasons “Article 22 of the Procedures Directive”.
Consideration of Arguments
244. These grounds on the face of them might seem rather troubling. I have indicated before the substance but repeat it here for convenience. It was the Appellant’s case that she could not disclose the full identities of Greek witnesses. She had provided a list of names and professions of the UK based witnesses and a separate description of the Greek witnesses without revealing their names. It was her case that the Greek witnesses were not willing to participate in the Appellant’s case without clear indications relating to their anonymity. Similarly that said they would only provide oral evidence save for Mr K as he had previously done an independent investigation that had been published. She did not trust anonymity directions to work and did not trust the Home Office.
245. However, the Tribunal found that it was a matter of public knowledge initiated by the Appellant that she had left Greece to claim asylum. Her identity had been revealed to some extent by letters from Mr Jeremy Corbyn MP to the Ministry of Justice and an article translated from Greek published in April 2014 referred to the Appellant as the “ex-interrogator judge who claimed asylum in the UK”. Further, the point had been argued at some length in front of Judges Storey and Scott-Baker and it was established that the fact that the Appellant had a pending asylum appeal in the UK had been in the public domain in Greece for some time.
246. The Tribunal concluded there was no evidence from which it could interfere or conclude that the authorities’ knowledge of the asylum claim carried any additional risk. The grounds really do not find any fault in this.
247. The First-tier Tribunal’s contention of the matters set out in grounds 4 and 5 are not actually argued before the First-tier stands and it is too late to complain an error of law now.
248. I am most concerned with the grounds asserting that the Respondent and the Tribunal knew because of letters from Wilsons Solicitors and Victim Support that the Appellant complained of the conduct of Greek agents well before she reported an incident in April 2019 and that the Tribunal’s adverse credibility finding based on her failure to make such a report is perverse. The letters are identified by date but not by reference to a paginated bundle, notwithstanding very clear directions by Judge Storey on 25 October 2019 that paginated bundles be provided. I am confident that the solicitors had good reason to make the assertions that they did but I cannot find the documents to which they refer. It follows that I do not know that they were before the First-tier Tribunal and I do not know exactly what they said. In the absence of the same I cannot say that there was an error of law by the First-tier Tribunal.
249. I sat back and reflected a little on this case.
250. This appeal does not turn on whether the Appellant is telling the truth about incidents in her private life that she attributes to agents of the Greek State but about whether she would be ill-treated in the event of her return to Greece. They are related but different points.
251. I appreciate that from the Appellant’s point of view she has a great fear of returning to Greece. It may even be that she has persuaded herself that she has been ill-treated and singled out for unfair or discriminatory or even persecutory treatment. The problem that will not go away is that she has not been able to persuade the Respondent or the High Court or the First-tier Tribunal that that is the case.
252. I say respectfully that standards in the High Court are high. If there are had been something useful to say it could have been expected to have emerged in the High Court but it did not. Importantly, nothing of significance has happened since then. It is not the function of the First-tier Tribunal to hear appeals against High Court decisions nor did the Tribunal think otherwise. The Tribunal was conspicuously looking for something credible that might have made a difference and found none.
253. This is a simple point made simply in a clear decision. That so much in the decision had to be devoted to the procedural history is indicative of the difficulties of getting on with this case which the Tribunal attributed to deficiencies on the part of the Appellant rather than anything else.
254. The Appellant may well have been convicted in her absence. I do not accept that arguments over the exact length of sentence advance either side’s case. There is no reason to fear that the Appellant is going to be imprisoned in unlawfully severe conditions. The evidence points in entirely the opposite direction and the fact the Appellant does not like it or agree is neither here nor there.
255. Much has been promised in the way of supporting evidence from prominent people in Greece but that evidence has not appeared and the reasons given for it not appearing have been found unimpressive for lawful reasons by the First-tier Tribunal.
256. The First-tier Tribunal was clearly entitled to find that the Greek State would not imprison the Appellant in unacceptable conditions and had not and would not use prosecution unlawfully as a means of persecution.
257. In short the First-tier Tribunal found that the Appellant had not proved her case and I find that no material error of law has been established in that decision.
258. I have indicated the core points and I have indicated why I find the grounds and arguments before me make no impact on the core findings of the First-tier Tribunal.

Notice of Decision
259. I dismiss this appeal.

Jonathan Perkins
Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 15 September 2022