Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02734/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th March 2017
On 10th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

nI
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Braganza, Counsel instructed by Lawrence Lupin Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against a decision of First-tier Tribunal Judge Chana dismissing the Appellant’s appeal against the Respondent’s decision to refuse asylum and leave to remain based on his human rights and refusing to grant humanitarian protection, thereby challenging removal directions. The Appellant appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Parkes. The grant of permission states as follows in relevant part:
“The judge found that the Appellant was not a credible witness for the reasons given in paragraphs 50 to 74 of the decision.
The grounds argue that the judge exhibited bias against the Appellant on the basis of her conduct at the hearing, the manner of questioning and how the evidence was portrayed in the decision itself.
These are serious allegations and in granting permission I note that the views of the Home Office and the judge will have to be attained to gain a full picture of what took place. The case is to be referred to Upper Tribunal Judge Dawson as the resident judge at Field House for Case Management.”
2. The grant of permission focused upon Ground 1 of the Grounds of Appeal drafted by Counsel who appeared before the First-tier Tribunal, Mr Benjamin Bundock. The grant of permission was however not explicitly limited to Ground 1 and permission was implicitly granted on all grounds. The remaining grounds of challenge may be summarised as follows:
Ground 2 – The judge’s failure to adjourn rendered the hearing unfair.
Ground 3 – The approach of the judge was Wednesbury unreasonable.
Ground 4 – The judge failed to take important material evidence into account.
3. A Rule 24 reply was provided by the Respondent which was read by all parties before the hearing commenced.
Preliminary Matters
4. In the weeks before this hearing took place, I note from the file that Judge Parkes’ statement that the views of the Home Office and the judge would have to be obtained was not facilitated by the administration of this file by either the First-tier Tribunal or the Upper Tribunal. I also note that it is unfortunate that the case was not referred swiftly to Upper Tribunal Judge Dawson’s attention as the Principal Resident Judge at Field House. Thus when this appeal came before me this morning it is evident from the file that no Case Management had been performed by the Tribunal as would have been expected given the decision by Judge Parkes on 8th February 2017. As such, given the allegations made by Counsel in terms of an appearance of bias and unreasonableness in the judge’s handling of the appeal before the First-tier Tribunal and given the decision in Sarabjeet Singh v Secretary of State for the Home Department [2016] EWCA Civ 492 at [53-54] of Lord Justice Davis’ lead judgment on behalf of the Court of Appeal, and the observations made by the Court at subparagraph [53(3)] that written comments of the judge should be provided to the parties for the purpose of the appeal hearing in the Upper Tribunal, and that it is normal practice for the Upper Tribunal to obtain the written comments of the judge concerned both in fairness to the judge and to provide the other Tribunal with a fuller picture; I saw that I had no reason but to indicate to the parties that in respect of Grounds 1 and 3, I was left with no choice but to adjourn this error of law hearing to facilitate the omitted Case Management in fairness to the judge, to provide the Upper Tribunal with a fuller picture and so that the comments could then also be sent to both parties before a resumed hearing could take place in respect of Grounds 1 and 3.
5. However, that was not the end of the matter as Grounds 2 and 4 remained and were not contingent upon a challenge the judicial handling of the appeal. I indicated to the parties that my preliminary view on Grounds 2 and 4 was such that I saw there was just sufficient in both Grounds that the errors of law identified were material such that the determination should be set aside, subject to submissions that from both parties. In light of my preliminary view Mr Staunton, on behalf of the Respondent, pragmatically accepted that there was a material error in respect of Grounds 2 and 4 such that the determination should be set aside and remitted to the First-tier Tribunal which he remarked may have followed anyhow were Grounds 1 and 3 to be heard in due course given that he did not have any instructions on how to oppose those Grounds and had not been provided with any useful or relevant information by the Presenting Officer whom appeared before the First-tier Tribunal. Miss Braganza whom appeared on behalf of the Appellant, after seeking instruction, confirmed that the Appellant was content for the Upper Tribunal to determine the appeal based upon Grounds 2 and 4, given the concession made by Mr Staunton on behalf of the Respondent. In light of the parties sensible approach to the error of law hearing before the Upper Tribunal, and the submissions made upon Grounds 2 and 4, I go on to consider those Grounds for myself before turning to Grounds 1 and 3.
Error of Law
6. In respect of Ground 2, I do find there was an error of law in the determination such that it should be set aside. My reasons for so finding are as follows. Ground 2 concerns an allegation that at the hearing the judge’s refusal to adjourn the hearing rendered the appeal unfair. The Appellant seeks to rely explicitly upon the Court of Appeal’s decision in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 at [8] and [14] which confirmed collectively that a claim for asylum demands the highest standards of fairness and that where an Appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be – no matter what stage the proceedings have reached – what does fairness demand? In this respect the Appellant sought an adjournment on the basis that the Respondent’s Presenting Officer formed the view on the very morning of the appeal hearing before the First-tier Tribunal that he would challenge the relationship asserted between the Appellant and his witness, in that he did not accept that they were brothers. This stance was not taken by the Respondent previously and it was in essence a new position taken by her on the morning of the appeal hearing. This stance is one which was open to her to take of course, but was one which would have repercussions for the Appellant in terms of the notice given to him of this new issue and the lack of time to prepare his case in response to it. As such the Appellant sought an adjournment which in my view should have been granted as fairness demanded that the appellant be given the opportunity to put his case as strongly as he saw fit by obtaining any necessary evidence for example in the form of a DNA test. I pause at this juncture to note that the Appellant has sought to put DNA evidence before the Upper Tribunal which seeks to link him to his witness, and to demonstrate that they are indeed brothers, as he so claimed. I have of course not considered this evidence beyond acknowledging its existence as it is an indication that evidence could have been obtained had the adjournment been granted which reinforces my decision that fairness demanded the adjournment should have been granted to the Appellant. Were this not enough in of itself, the fact that such evidence could have been produced would also coincidentally demonstrate that there is an error in the judge’s finding of fact that the Appellant and his brother were not credible in respect of their relationship as siblings and therefore her finding that the Appellant would resort to deception to achieve an objective that the witness was his brother is factually flawed. In any event, I find that there is an error of law in respect of Ground 2 in failing to grant an adjournment.
7. Turning to Ground 4 and the allegation that the judge failed to take important and material evidence into account. This Ground is somewhat subtly drafted as the Ground itself reveals that the judge failed to take into account a previous Determination of the First-tier Tribunal made by Judge Petherbridge on 20th May 2014 in relation to adverse findings in respect of Section 8 matters going to the Appellant’s credibility whereas the Determination of Judge Petherbridge shows that as early as 2012 the Appellant’s applications relating to his further fear on return to Bangladesh corroborate his explanation that he believed and hoped the situation in Bangladesh would change in due course. As such in my view the judge has erred in respect of Section 8 matters by failing to take the Determination of Judge Petherbridge into account but the error of law is of a more fundamental nature given that the starting point for the First-tier Tribunal’s determination in any further appeal hearing must at least show acknowledgement or regard given to the status quo reached by the previous judge pursuant to the decision of this Tribunal in Devaseelan UKIAT [2002] 000702 Starred. Furthermore, the First-tier Tribunal Judge failed to have regard to photographic evidence which allegedly demonstrated that the Appellant’s brother-in-law was acting as a bodyguard to a major Awami League politician alongside newspaper articles which were said to corroborate the Appellant’s claim. As such given these flaws in the judge’s assessment of the Appellant’s credibility I do find that there is a further error of law in the determination in this respect.
8. In light of the above findings I set aside the decision and findings in full of the First-tier Tribunal given that these errors of law cumulatively amount to a material error necessitating that the determination be set aside.
9. Given my findings in respect of Grounds 2 and 4, I do not go on to consider Grounds 1 and 3 as they are thus rendered academic the Appellant having established a material error of law in the determination such that it should be set aside.
10. As such no findings shall be made upon those Grounds and thus the error of law hearing has come to a close without the need for an adjournment and further case management.

Notice of Decision
11. The appeal to the Upper Tribunal is allowed. The previous determination involved the making of an error on a point of law and is set aside.
12. The appeal is to be remitted to the First-tier Tribunal to be considered by a differently constituted bench.
13. I grant the Appellant anonymity in light of the fact that this decision will be available online although that is no indication that I have pre-empted the outcome of his protection claim of course.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 06/04/17

Deputy Upper Tribunal Judge Saini