Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02810/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 January 2017
On 31 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

MR J L D
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss U Dirie, Counsel instructed by Fadiga & Co Solicitors (Stratford)
For the Respondent: Mr S Whitwell, Senior Presenting Officer

DECISION AND REASONS

1. In this matter the Appellant, a national of Cameroon, date of birth 13 January 1983, appealed against the Respondent's decision to refuse asylum, dated 16 March 2016.
2. His appeal came before First-tier Tribunal Judge Walker (the Judge) who on 5 September 2016 dismissed the appeal. Permission to appeal was sought and refused by First-tier Tribunal Judge Lambert, on 17 October 2016, but granted on a renewed application by Upper Tribunal Judge McWilliam on 22 November 2016. She said in granting permission:
"It is arguable that the judge did not take into account that the need for a report had arisen from the issue raised by Barbera Gehrels in her letter of 10 August 2016. The hearing date was 24 August 2016. Thus the conclusion that the appellant had had sufficient time to obtain a report and that the issue had not been raised at a CMR is an arguably flawed reason for refusing the adjournment. I cannot discount that had the judge appreciated this he would have allowed the adjournment. Although it may still not explain why an application was not made until the day of the hearing."
3. There is familiar case law illustrated by the decision in Mibanga [2005] EWCA Civ 367 that the evidence including medical evidence should be read as a whole before an assessment in the round is made on the facts. In this case for no apparent reason other than the failure of Fadiga & Co (Stratford) {Fadiga} to do their job in preparing the case. The fact is that no one prior to the hearing had raised with the Tribunal or even the Respondent of a need for an adjournment in order to obtain medical evidence. Nor had there been any preliminary examination by an expert as to whether or not there was a case that could potentially be made out on the basis of the Appellant suffering PTSD as a result of ill-treatment received at the hands of others.
4. No preparation whatsoever was in train at the time of the CMR or PTR at which point plainly directions could have been given about listing, the length of the hearing and all else that sequentially followed from the need for medical evidence, in addition to that of the Appellant himself. Those failures I am told lie solely at the feet of Fadiga and not at the Appellant, who it seems was further disadvantaged by the events of being relocated from London to Swansea as a result of asylum support arrangements in being. Therefore although Miss Gehrels wrote her letter of 10 August 2016 it appears someone at Fadiga took the view that it only needed to be produced in support of an application on the day of the hearing. Such thinking was misconceived and demonstrably so as any practitioner or representative should have known. Miss Dirie, who was only instructed a few days before the hearing, was left in the position of making the adjournment application at the hearing in circumstances where plainly it was at odds with the overriding objective is contained in Rule 2 of the Tribunal Procedure Rules 2014 which identify the overriding objective to deal with cases fairly and justly.
5. The Rule requires dealing with the case in a way which is proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal, ensuring so far as practical that people are able to participate fully in the proceedings, avoiding delay and using special expertise which the Tribunal possesses or has advantage of. The overriding objective also notes that parties must (my emphasis) help the Tribunal to further the overriding objective and cooperate with the Tribunal generally. It is hard to see how Fadiga, on behalf of this asylum seeker, had done anything other than ill service to his case. It is no criticism of the judge that he was faced with a late application on an entirely speculative basis as to what ultimately the evidence might come to be concerning the issue of PTSD. Unsurprisingly having considered the matter the judge expressed in the way he did, cogently the reasons why he was not satisfied and more than that found fault in the presentation of the case, not by Miss Dirie, but in its preparation.
6. Miss Dirie has pointed out that the judge has made at least an error in arguing that the Appellant's claim had nothing to do with politics or on this basis political persecution: This she says was wrong because as a fact that was how his case had been put and the way the case proceeded on. It seemed to me that there may be some substance in the point but the question is whether or not it materially affects the way the judge ultimately dealt with the issue of the adjournment request.
7. The judge formed his view that it was in the interests of justice for the case to proceed. The interests of justice are as I have indicated a proper consideration as to whether or not the case can be justly proceeded with but fairness also forms an element to it. It seems to me the judge gave cogent reasons why the Appellant's claim would fail there is an underlying uncertainty which engages with unfairness in having done so in the circumstances of the case when as I am told it was put to the judge that the failures to prepare and present the case prior to Miss Dirie's handling of it had been at the hands of Fadiga and not at the hands of the Appellant.
8. I express no view whatsoever on the underlying story or its merits although if these criticisms stand it does not bode well for the outcome of any further hearing but that is for another day and I have absolutely no view whatsoever on the merits of the case. Mr Whitwell has cogently argued that really there was time indeed for the preparation of the case and it is the failures of others and that the consequence of granting an adjournment would be in effect to leave the position that the person can wait until the last moment to make an adjournment application and that effectively as he put it "vetoes" the hearing taking place.
9. I in general terms agree with this substance of his criticism which is that late applications for an adjournment should have little prospect of success and should not be used to frustrate the timely and proper disposal of Tribunal business. However, in this case I am satisfied that there is an element of unfairness which crept into this which is not derived from or caused by default on behalf of the Appellant. whilst Mr Whitwell has rightly drawn my attention to the general proposition of adjournments, which is not particularly stated in a novel fashion in Nwaige [2014] UKUT 418 (IAC) I am satisfied that the right course is going to have to be that the matter must be re-made and it seems to me it can be re-made in the Upper Tribunal.

NOTICE OF DECISION
The appeal is allowed to the extent that it is to be remade in the First-tier Tribunal
No anonymity direction is made.

Signed Date 20 January 2017
Deputy Upper Tribunal Judge Davey

Directions
Re list before First-tier Tribunal Judge, not before 6 weeks of the date of this decision. Not before F-tTJ Walker
2 hours
Interpreter required French (Central African) unless Tribunal (IAC) notified 10 days in advance of the resumed hearing to the contrary.
Two witnesses to be called. Particulars of their names, nationality and status in the UK to be provided to the Tribunal and Presenting Officers Unit 7 clear days before the resumed hearing.
Any further documents, medical evidence, other evidence to be served on the Tribunal and Presenting Officers Unit Team not less than 7 clear working days before the resumed hearing.

Signed Date 20 January 2017
Deputy Upper Tribunal Judge Davey