Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02952/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

EMZ
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Ly, counsel instructed by Fadiga & Co Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Andonian, promulgated on 19 September 2016. Permission to appeal was granted by First-tier Tribunal Judge Parkes on 25 October 2016.

Anonymity
2. No direction has been made previously, nonetheless one is made now as this is a protection matter.
Background
3. The appellant entered the United Kingdom on 25 August 2015 in possession of a business visit visa which was valid until 25 December 2015. On 28 September 2016, the appellant applied for asylum.
4. The basis of the appellant's asylum claim is that as a national of the Democratic Republic of Congo (DRC) he was recognised as a refugee in South Africa. The appellant left the DRC during 2001 and resided in South Africa thereafter. He was granted permanent residency in 2009. The appellant first began experiencing problems in South Africa during 2008, when he was beaten and stabbed for being a foreign employee of African origin. Thereafter, the appellant was subjected to verbal abuse. On 17 April 2015, the appellant was attacked at work by a group of men and some days later, his wife received telephone calls during which the appellant was threatened. The appellant left South Africa owing to a fear that he would be killed in a xenophobic attack. Prior to doing so he renounced his DRC nationality in preparation for seeking South African citizenship.
5. The Secretary of State refused the asylum application on 3 February 2016. The appellant's nationality and identity were accepted as was his claim that he was recognised as a refugee. The respondent noted that the appellant was now a permanent resident in South Africa. It was not accepted that the appellant had been attacked because of his nationality. It was noted that the two attacks were seven years apart and did not amount to a systematic campaign of persecution. It was not considered credible that the appellant's South African wife remained safe and well in that country in view of the appellant's claim that she was threatened and intimidated. Inconsistencies were noted with regard to whether or not the appellant reported the 2015 attack to the police. Mention was also made of the lack of any further incidents between the April 2015 incident and the appellant's departure from South Africa in August 2015. In the alternative, it was considered that there was a sufficiency of protection available to the appellant or that it was reasonable to expect him to internally relocate.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant attended in person, his barrister having fallen unwell on the day. The appeal proceeded in the absence of the appellant's representative; the judge considering that the solicitors ought to have intended the hearing instead.
7. The judge concluded that the appellant was not a credible witness and did not have a well-founded fear of persecution in South Africa.
The grounds of appeal
8. The grounds of appeal in support of the application criticised the judge's handling of the adjournment request; argued that the appellant was prejudiced by not having counsel to represent him; submitted that the inconsistency referred to by the judge was addressed in the appellant's witness statement and contended that the judge failed to consider the continuous verbal abuse and harassment suffered by the appellant between the two physical attacks.
9. Permission to appeal was granted on the following basis;
"With some hesitation I am prepared to permit this case to go forward to the Upper Tribunal. Although the Judge considered some of the information relating to the availability of counsel it may be arguable that he erred. Whether that is material is another issue to be considered. Equally there will be argument about the reasoning applied.
The grounds are arguable?"
10. The respondent's Rule 24 response, received on 9 November 2016, stated that the tribunal did not receive any written instructions from the appellant's solicitor that the representative was ill. It was said that the judge "fairly" gave the appellant an opportunity to obtain alternative representation but the solicitors were unable to send another barrister. Accordingly, the respondent opposed the appeal.
The hearing
11. At the outset, I raised the issue of statelessness which the appellant had alluded to in his witness statement which was before the judge and regarding which there were no findings.
12. Mr Ly submitted a detailed skeleton argument as well as relevant case law in the form of SH (Afghanistan) [2011] EWCA Civ 1284 and Nwaigwe (adjournment: fairness)[2014] UKUT 00418 (IAC). He submitted that there was evidence in the material before the judge which supported the appellant's claim to have renounced his Congolese citizenship. Thereafter, Mr Ly took me through each of the judge's negative credibility findings and made extraordinarily detailed submissions which, he argued, he would have made on the appellant's behalf had the appeal not proceeded in his absence. Briefly, with regard to the apparent delay in the appellant fleeing South Africa, an explanation was available, as was documentary evidence to support that explanation. Furthermore, the appellant had addressed the discrepancy as to the date of the first attack and there was 73 pages of supporting medical evidence showing when it occurred. Later in his submissions, Mr Ly argued that it was understandable that the appellant may have made a genuine mistake as to a date given the years of persecution he had suffered. He submitted that this discrepancy caused the judge to disbelieve the entirety of the appellant's case.
13. Mr Ly argued that the judge mischaracterised the first incident of assault as an accident, which was not consistent with the medical evidence. He further argued that the judge appeared to blame the appellant for the fact that the police did not identify his assailants, whereas there was copious evidence before the judge, including from UNHCR, regarding the attacks on African immigrants in South Africa owing to resentment from locals over employment. That evidence was said to show, inter alia, that the police turned a blind eye to incidents and that their resources were inadequate. The statistics for those killed, attacked or who had fled indicated that this was a pervasive problem.
14. Addressing me on the fairness point, Mr Ly argued that the points made before me could not be made on the day owing to the judge's decision to proceed with the appellant representing himself. The judge fixed the responsibility for the errors of the solicitors on the appellant. While taking care not to give evidence, Mr Ly, stated that it was not clear at what point the judge undertook to hear the appeal.
15. Mr Ly had telephoned Taylor House at 0900 hours in order to state that he would not be attending and also called his instructing solicitors. Those solicitors communicated with the court. He acknowledged that the documentary evidence was "hefty" in the appellant's case, but argued that he could have assisted the judge with this and more importantly the appellant had suffered a detriment. Lastly, the issue of statelessness had not been addressed.
16. Mr Clarke noted that there was no mention of counsel's telephone call in the decision and reasons. At this point I showed Mr Clarke Fadiga & Co's faxed letter of 24 August 2016 which was marked urgent and sent at 1025 hours. Mr Clarke acknowledged that if there had been some delay with this letter going before the judge there would be unfairness. He argued that no application for an adjournment was made and that the telephone call would not have sufficed. Ultimately, it was unclear what time the judge considered the appeal.
17. Mr Clarke argued that regardless of whether the appeal was adjourned, it was immaterial to the outcome. He argued that the UNHCR figures were insufficient to show that there was a risk per se to the appellant because there was a lack of detail in relation to the ethnicity of those attacks and where those took place. Even putting credibility to one side, the police were willing to protect the appellant. The judge dealt with all the matters raised in the grounds of appeal as well as additional matters raised during the error of law hearing. At [24], the judge considered the appellant's complaint re interpretation at his asylum interview; at [13] he had considered his explanations. Mr Clarke asked me to note that the medical evidence was at odds with what the appellant had said happened to him. The judge had also noted the verbal abuse and harassment between the two major incidents and rightly concluded that they were insufficient to amount to persecution. The incidents of assault amounted to the core of the appellant's claim and these were comprehensively considered. He argued that the appellant had failed to demonstrate that the police were unable or unwilling to assist him. The judge noted that the appellant approached the police but was unable to identify his assailants. His case was considered at its highest, with the judge concluding that he was not subject to systematic persecution. On the statelessness issue, Mr Clarke argued that the appellant was a refugee who could be returned to South Africa, where he would have access to public services.
18. In reply, Mr Ly argued that the judge's decision to proceed with the hearing was inherently unfair. While it was not known what time the hearing took place, it was known that the letter was faxed at 1025. He contended that it would be rare for case to start on the dot of 1000, particularly at Taylor House. Mr Ly recalled receiving a call around lunchtime on the day of the hearing, while he was at A&E to say the case was not adjourned. He drew my attention to [3] of the decision where it is mentioned that the appellant had spoken to him the day before the hearing when he was well. It was only at the last minute that Mr Ly could not attend and this had been too late for the solicitors who could not arrange representation at such short notice. At [4] it was apparent that at the forefront of judge's mind is that one is guaranteed ones' solicitor which implied that the letter was already before him. In any event, it was clear that a request for an adjournment was before the judge.
19. Mr Ly returned to the UNHCR material in some detail which he argued contradicted the judge's findings on the sufficiency of protection point. With regard to the inconsistencies in the medical evidence, Mr Ly explained that he was hampered by not knowing what transpired at the hearing. There was not even a summary of questions and answers put to the appellant in the judge's decision
20. Otherwise, in relation to credibility as well as the refugee definition, Mr Ly made the submissions he would have made had he been present at the hearing. With regard to statelessness, he argued that notwithstanding that he was a permanent resident in South Africa, the appellant was without nationality.
Decision on error of law
21. The First-tier Tribunal Judge made a material error of law in declining to adjourn the hearing.
22. The appellant informed the judge that his counsel had been taken unexpectedly ill on the day of the hearing, having apparently been well the night before. The judge proceeded to hear the appeal in the absence of a representative. According to [3] of the judge's decision, the letter from Fadiga & Co, sent at 1025, arrived after the judge heard the appeal. In [3] to [6] of the decision, the judge then justifies his decision to proceed with the appeal after he has already done so, with reference to Fadiga & Co's letter. At [6] he says, "I considered there was no reason why the appeal should not go ahead?" But of course the appeal already had by the time the judge came to that conclusion.
23. The judge considered that the solicitors ought to have stepped into the breach, rather than relying on counsel. There is no consideration by the judge of whether he ought to have declined to determine the appeal or whether the matter ought nonetheless to be adjourned, notwithstanding that he had heard it in the minutes prior to the letter arriving.
24. I have had regard to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 regarding the power the First-tier Tribunal has to adjourn or postpone a hearing under its case management powers. Regard should have been had to the overriding objective set out in Rule 2 requiring the Tribunal to deal with cases fairly and justly.
25. I have also had regard to the decision in Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC). The crucial question being whether the refusal of an adjournment deprived the affected party of a right to a fair hearing. I have also taken into consideration the Presidential Guidance note no. 1 of 2014 and note that factors weighing in favour of adjourning an appeal, even at a late stage, are to be balanced by factors weighing against the grant of an adjournment; for instance, that the application was not made at the earliest opportunity or is speculative or that it does not show that anything material would be achieved by the delay.
26. In SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 at [13], it was held that when considering whether an adjournment should have been granted, the test was not irrationality or whether the decision was properly open to the judge; the sole test was whether it was unfair. As stated in Nwaigwe, supra, in practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. I find that the appellant has been so deprived.
27. It is clear that from the background circumstances prevailing at the date of the hearing before the First-tier Tribunal, that fairness in this case required that an adjournment should have been granted owing to the sudden ill-health of counsel. In these circumstances, it was unreasonable for the judge to expect an alternative representative to be available at such short notice. Furthermore, the judge heard the appeal without consideration of the letter from Fadiga & Co in which a short adjournment of a week was sought.
28. The adjournment application was made at the earliest opportunity, given the circumstances. Furthermore, there was no consideration by the judge of the overriding objective at any point.
29. It is also a matter of concern that the appeal was heard so swiftly to the extent that it was concluded by the time Fadiga & Co's fax, marked urgent, arrived at 1025. The speed with which the appeal was heard was remarkable in view of the credibility issues, complex issues of sufficiency of protection, 200-pages of relevant subjective and objective material and the fact that the appellant gave evidence via an interpreter.
30. I now consider whether the error of law was material. As was apparent from Mr Ly's lengthy and pertinent submissions in relation to credibility issues, the background material and the issue of sufficiency of protection; the presence of counsel at the appeal could have led to a different outcome. Furthermore, the issue of statelessness went entirely unaddressed by the judge.
31. Having regard to the case law and the 2014 rules, I find that the decision of the First-tier Tribunal refusing the adjournment was unfair in the circumstances. I accordingly set aside that decision.
32. I considered retaining this matter at the Upper Tribunal, however the appellant has been deprived of a fair hearing. I therefore consider that this matter ought to be remitted to the First-tier Tribunal for a fresh hearing, with no findings preserved.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Andonian.

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: 29 November 2016

Upper Tribunal Judge Kamara