Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02558/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 December 2017
On 11 January 2018

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

W G N
(ANONYMITY DIRECTION MADE)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: No appearance and not legally represented
For the Respondent: Mr D Clarke - Senior Presenting Officer

DECISION & REASONS

1. WGN is 16 years old (soon to turn 17), has no legal representatives and is the subject of a supervision order held by Leeds City Council.
2. I am told that there are on-going adoption proceedings in relation to WGN in the Family Court, brought by a person settled in the United Kingdom. The final hearing in relation to those proceedings has been set down for 10 January 2018. The appellant is assisted in those proceedings by the children's guardian (MJ). MJ does not assist the appellant in the instant proceedings, although his assistance would be welcomed by the Tribunal and, no doubt, by the appellant.
3. The appellant appealed to the First-tier Tribunal against the SSHD's decision of 24 February 2017, refusing her protection and human rights claims. She was, however, granted leave to remain "as an unaccompanied asylum seeking child". The appellant's appeal was subsequently dismissed by FtT Judge Jones, in a decision promulgated on 17 August 2017. The appellant did not attend the hearing of her appeal before the First-tier Tribunal, nor did a legal representative attend on her behalf.
4. Given the appellant's absence from the hearing, the First-tier Tribunal initially considered whether it should proceed, concluding as follows:
"2. Ms Hopkinson appeared on behalf of the Respondent. The appellant did not appear. I notice from the Tribunal file that the matter had been adjourned on an earlier occasion, at the appellant's request, when representatives had withdrawn representation, in order that she might secure further representation "in about three months' time." The Tribunal adjourned the matter in line with that request. I could see from the file of papers that in response to the request from the Appellant to adjourn dated 22nd March 2013 (sic), the Tribunal wrote to her at the address as stated in her earlier letter on 20th March 2013 (sic), adjourning until today's hearing date. Ms Hopkinson asked me to proceed.
3. I considered Rules 2 and 28 of the First-tier Tribunal Rules applicable to this jurisdiction and concluded that timely notice had been given of the hearing to the Appellant, there is nothing to suggest that that notice, sent to an address with which she had recently communicated with the Respondent, had not been sent to her. It had not been returned by the Post Office suggesting it was not delivered. The Tribunal has heard nothing further from the Appellant in the meanwhile either. I determined to proceed."
5. On 6 November 2017 First-tier Tribunal Judge C.A. Parker granted the appellant permission to appeal to the Upper Tribunal, for the following reasons:
"The grounds allege that the appellant understood that she did not need to attend the hearing as parallel court proceedings were ongoing. She explained that she had been placed with [LG] under a child arrangement order and was living with her in Leeds. She was represented in those proceedings by a solicitor and has a social worker in Leeds.
The appellant is an unaccompanied minor and so I very carefully considered the judge's decision in its entirety. My only concern is in respect of the judge's decision to proceed in the appellant's absence. At paras 2 and 3, the judge notes that the appeal was adjourned earlier at the appellant's request as she was seeking representation and the notice of hearing appeared to have been properly served. There is no criticism of this approach, had the appellant been an adult. Although the judge refers to the appellant being a minor in the body of the decision, there is no evidence that her being an unrepresented minor was considered when the judge made the decision to proceed in her absence. There is an arguable error of law in the decision."
6. The matter was listed before the Upper Tribunal as a case management hearing to determine how best to proceed given that the appellant is an unrepresented minor, and in light of the real possibility that the proceedings in the Family Courts would be finalised shortly.
7. Lengthy representations were received shortly before the hearing from a Mr Rogerson, who writes on behalf of Leeds City Council, ostensibly requesting that the proceedings be adjourned until the outcome of the family proceedings is known.
8. At the hearing on 22 December 2017 Mr Clarke accepted, for the reasons identified by Judge Parker in the grant of permission, that the First-tier Tribunal's decision contains an error of law and should be set aside. I concur. Had the aforementioned concession not been made I would, given the information which has now been provided by the appellant in relation to her personal circumstances and the circumstances leading to her non-attendance, have, in any event, concluded that there had been unfairness occasioned by the FtT's decision not to adjourn the hearing of the appellant's appeal.
9. Consequently, despite the appeal being listed before the Upper Tribunal for a case management review hearing and despite the non-attendance of the appellant at the hearing I, nevertheless, set aside the decision of the First-tier Tribunal.
10. Mr Clarke further submitted that the appropriate course was for the appeal to be remitted to the First-tier Tribunal to be re-determined afresh. Once again, I concur with the Secretary of State's position.
Decision
The decision of the First-tier Tribunal is set aside.
The appeal is remitted to the First-tier Tribunal's Bradford hearing centre to be determined afresh.
Signed:

Upper Tribunal Judge O'Connor
Dated: 22 December 2017