Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03182/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 17th November 2016
On 25th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

f s
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs M Christopher of Burton & Burton Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against the decision of Judge Row of the First-tier Tribunal (the FtT) promulgated on 22nd July 2016.
2. The Appellant is an Iraqi national born 5th December 1983 who arrived in the United Kingdom clandestinely on 26th June 2015 and claimed asylum.
3. On 10th November 2015 the Respondent decided that the Appellant was not entitled to asylum or humanitarian protection, and that his removal from the UK would not breach any of his human rights protected by the 1950 European Convention on Human Rights (1950 Convention).
4. The appeal was heard by the FtT on 18th July 2016. The FtT was made aware on the hearing date, that the Appellant's solicitors had withdrawn and were no longer representing him. The Appellant attended the hearing as did an interpreter, although the interpreter spoke Kurdish Kurmanji, whereas the Appellant had requested an interpreter who spoke Kurdish Bahdini.
5. The FtT commenced the hearing but decided to adjourn until later in the day, to ascertain whether a Kurdish Bahdini interpreter could attend, and to make enquiries with the Appellant's solicitors, as to why they had withdrawn.
6. When the hearing re-commenced the Appellant had left the hearing centre. The FtT took the view that the Appellant had chosen to absent himself, and had not applied for an adjournment, and therefore the FtT proceeded and heard the appeal in his absence.
7. The FtT did not find that the Appellant had given a credible account, indicating (at paragraph 26) "that even on the low standard of proof I do not believe the Appellant". The appeal was subsequently dismissed both on asylum and human rights grounds.
8. The Appellant applied for permission to appeal contending that the FtT erred in law by deciding the appeal in his absence.
9. The Appellant pointed out that he attended the hearing on 18th July 2016, but could not understand the interpreter, who was not a Kurdish Bahdini interpreter. The Appellant understood from the interpreter that the hearing would not go ahead as no Bahdini interpreter was present, and the FtT would inform him when to attend the adjourned hearing. The Appellant therefore went home, not understanding that the hearing had only been adjourned until later in the day. The Appellant contended that he had been denied an opportunity to give his evidence to the FtT.
10. Permission to appeal was granted by Judge Froom of the FtT in the following terms;
"There are significant obstacles in the path of this Appellant succeeding in his protection claim but it is axiomatic that he should be provided with a fair hearing so that he can fully explain his case and that the provision of the correct interpreter is a vital element of this. The Appellant had requested a Bahdini interpreter and, although I understand this to be a dialect of Kurmanji, it is arguable that the FtTJ erred in proceeding to hear the appeal in the Appellant's absence. I note as well that the Appellant said he had been expecting his solicitors to represent him.
I also find it of concern that the FtTJ's enquiries with the Appellant's former solicitors as to the nature of the conflict of interest which led them to cease to represent him were matters which were protected by professional privilege."
11. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision must be set aside.
The Appellant's Submissions
12. The Appellant did not attend the hearing, apparently having been advised by his newly instructed solicitors that he need not attend. Mrs Christopher relied upon the grounds contained within the application for permission to appeal. I was asked to accept that the Appellant genuinely believed that his case had been adjourned and would be heard at a later date, which is why he left the hearing centre. He did not understand that his case had only been adjourned until later in the day. I was asked to find that it was unfair of the FtT to proceed in the Appellant's absence.
The Respondent's Submissions
13. Mr Richards accepted that there was a real possibility that there had been a misunderstanding, and while not criticising the FtT, accepted that it may be prudent to find that the Appellant was denied a fair hearing.
My Conclusions and Reasons
14. I announced at the hearing that I found that the Appellant had been denied a fair hearing and therefore the decision of the FtT was set aside with no findings preserved, for the following reasons.
15. It is common ground that there is a need for anxious scrutiny in appeals involving claims for international protection, and great care must be taken before making adverse credibility findings in such an appeal.
16. I note that the Appellant attended the hearing before the FtT on 18th July 2016, and that is an indication that he intended to take part in the proceedings. The FtT noted (paragraph 11) that the Appellant had been expecting his solicitors to represent him at the hearing. The Tribunal file indicates that the Tribunal was only made aware that the solicitors had withdrawn, on 18th July 2016, the day of the hearing.
17. It is accepted that the Appellant had requested a Kurdish Bahdini interpreter to attend the hearing and this was the language and dialect used when he was interviewed in connection with his claim for asylum. I accept that the Appellant left the Tribunal Hearing Centre before his appeal had been concluded, but I do not accept that he deliberately abandoned his appeal.
18. I accept the Appellant's claim that he did not understand the interpreter who had attended, and that he believed that when the hearing was adjourned in the morning, he would be given notification by post, of a new hearing date. I am satisfied that he did not understand that the hearing was simply being adjourned until later in the day.
19. Credibility is an issue in this appeal. As the FtT proceeded in the Appellant's absence, he was not able to give evidence and present his case. It is not clear that the bundle of documents submitted by his previous solicitors accurately reflected his case. The solicitors informed the FtT they had withdrawn because of a conflict of interest, and at the request of the FtT, submitted a further fax dated 18th July 2016, confirming that the Appellant's instructions had changed, and the bundle of documents had been prepared on the basis of his previous instructions, not his current instructions. Therefore by relying upon the bundle that had been submitted, it appears that the FtT relied upon a bundle that did not accurately reflect the Appellant's case that he wished to present.
20. For the above reasons, I find that the Appellant did not have a fair hearing and the decision is set aside with no findings preserved.
21. I considered paragraph 7.2 of the Senior President's Practice Statements, and found that it was appropriate to remit the appeal back to the FtT (with the consent of both representatives) because of the nature and extent of judicial fact-finding that would be required in order for the decision to be re-made.
22. The appeal will be heard at the Birmingham Hearing Centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FtT judge other than Judge Row. A Kurdish Bahdini interpreter is required.
23. The Appellant's current representatives should note that the bundle submitted on the Appellant's behalf by his former representatives is incomplete, comprising only 33 pages, whereas the index makes reference to 181 pages.
24. The Appellant is to serve upon the Tribunal and the Respondent a complete bundle of documents to be relied upon, and this bundle must be served within 21 days of the date that this decision is sent out.
Notice of Decision
The decision of the FtT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FtT with no findings of fact preserved.
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 his 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: 21st November 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD
No fee award is made by the Upper Tribunal. The issue of any fee award will need to be considered by the FtT.

Signed Date: 21st November 2016

Deputy Upper Tribunal Judge M A Hall