Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02882/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2018
On 14th January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

RW
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Syed-Ali, Counsel, Temple Court Chambers
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Sri Lanka, appealed to the First-tier Tribunal against a decision of the Secretary of State dated 15th February 2018 to refuse his application for asylum or humanitarian protection in the UK. First-tier Tribunal Judge Devittie dismissed the Appellant's appeal in a decision promulgated on 1st October 2018. The Appellant now appeals to this Tribunal with permission granted by First-tier Tribunal Judge Grant-Hutchison dated 26th October 2018.
2. The Grounds of Appeal contend that there was a procedural error in that the judge heard the appeal in the Appellant's absence despite that fact that there was an adjournment request. The second ground is that the judge erred in failing to consider the appeal on Article 8 grounds even though that had been pleaded in the Grounds of Appeal.
3. In paragraph 6 of the decision the judge noted that the Appellant did not attend the hearing and that on the day of the hearing the judge received a faxed transmission from the Appellant which stated that a doctor's letter was attached in relation to his anxiety attack which prevented him from attending court. The judge noted at paragraph 7 that the medical report on which the Appellant relies is a statement of fitness for work under the Social Security Statutory Sick Pay Scheme which recorded that his case was assessed on 28th August 2018 (the date of hearing) and that the Appellant was not fit for work because of anxiety. The judge noted that no further detail had been provided. At paragraph 8 the judge noted that the onus was on the Appellant to demonstrate that he was unable to attend the hearing for medical reasons; that the sick note was obtained on the date of the hearing and provided no detail at all as to why the Appellant's anxiety incapacitated him to such an extent that he was unable to attend the hearing; and the judge was satisfied that the application for an adjournment should be declined and that this would not prevent the just disposal of the appeal. The judge went on to determine the appeal on the merits on the papers and in the absence of the Appellant.
4. It is contended in the Grounds of Appeal that, as well as faxing a 'fit to work' certificate to the Tribunal, the Appellant's friend had telephoned the clerk to the Tribunal and explained the circumstances of the Appellant's illness that he had severe depression and an anxiety attack. At the hearing before me Mr Syed-Ali produced a witness statement from the Appellant's friend claiming that the Appellant was suffering from an anxiety and panic attack, that he contacted the court clerk and explained that the Appellant had been suffering from a panic attack all night, had been in emotional turmoil over the hearing and that he was not going to attend. It is stated that the clerk told the friend that she would place the matter before the judge. There is no record in the court file of any telephone call in relation to this matter.
5. However there is a letter from the Appellant to the Tribunal dated 27th August 2018 saying that he had suffered from an "acute anxiety attack due to depression and a mental health condition". He said that he is attending talking therapies in relation to his issue and is under the care of his GP for this condition. It is stated that he would forward a sick note as confirmation of this and asked if there could be a further date given for the appeal hearing.
6. This was followed by the fax the following day 27th August from the Appellant to the Tribunal attaching the doctor's letter which is as noted by the judge a statement of fitness for work for Social Security or statutory sick pay stating that the Appellant was suffering from an anxiety state and was not fit for work.
7. It therefore appears that the judge decided to refuse to adjourn the appeal only on the basis of the fax of 28th August and in ignorance of the telephone call from the Appellant's friend or, more significantly, the letter of 27th August which had clearly been sent the previous day. Had the judge had this document before would have had more detail as to why the Appellant's anxiety impacted on his ability to attend the hearing and may well have come to a different view in relation to the adjournment request.
8. In these circumstances in light of the fact that the judge did not have all of the evidence submitted to the Tribunal in connection with the adjournment request I am satisfied that there was a procedural error. I take into account the decision in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 where the then President of the Tribunal stated at paragraph 7;
"If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; appealing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FTT acted reasonably. Rather, the test to be applied is out of fairness: was there any deprivation of the affected party's right to a fair hearing? Any temptation to review the conduct and decision of the FTT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell, fairness is the supreme criterion."
9. Given that the decision to proceed was not made with all of the relevant information and was not fair it is appropriate to set aside the decision so that the Appellant may have an opportunity to put his case to the First-tier Tribunal.
10. The effect of the procedural error is such that the Appellant has not had the opportunity to put her case to the First-tier Tribunal. In light of the Presidential Practice Statements the nature or extent of the judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is appropriate to remit the case to the First-tier Tribunal.

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: 29th December 2018

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I make no fee award because no fee was paid or is payable.

Signed Date: 29th December 2018

Deputy Upper Tribunal Judge Grimes