Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/03735/2015
PA/02876/2015

THE IMMIGRATION ACTS

Heard at Field House
Decisions & Reason Promulgated
On 18 October 2016
On 19 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANUELL

Between

(1) Mr s a
(2) MISS S A
(ANONYMITY Direction NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr R Sharma, Counsel (instructed by Good Advice UK)
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellants appealed with permission granted by Upper Tribunal Judge Frances on 10 September 2016 against the decision of First-tier Tribunal Judge Khawar made in a decision and reasons promulgated on 5 April 2016, dismissing the Appellants' linked asylum, humanitarian protection and human rights appeals.

2. The Appellants are nationals of Iraq, siblings, born respectively on 5 November 1985 and 25 November 1987. They applied for asylum long after entering the United Kingdom as Tier 4 (General) Student Migrants. They claim to be Sunni Muslims from Baghdad in fear of Shia militias.

3. Neither Appellant nor their representatives attended the date fixed for their substantive appeal hearing. Nor had directions been complied with. Judge Khawar found that notice of hearing had been correctly served on the Appellants and on their representatives. He decided to hear the appeals in the Appellants' absence and that it was fair to do so.

4. Judge Khawar found that the Appellants had failed to prove their case. Thus the appeals were dismissed.

5. When granting permission to appeal, Upper Tribunal Judge Frances considered that it was arguable that a problem had occurred in that an application to adjourn had been made to the First-tier Tribunal but that it had not reached the judge.

6. No notice under rule 24 was filed. Standard directions were made by the tribunal and the appeals were listed for adjudication of whether or not there was a material error of law.

Submissions

7. Mr Sharma for the Appellants submitted that it was a clear case of procedural error. The Appellants' solicitors had foreshadowed an adjournment application to the Home Office Presenting Officer the previous day and that had been recorded by the judge. The medical evidence showed that the First Appellant was not discharged until the day prior to his hearing. The time of the discharge was unclear. The First Appellant was the main witness and the Second Appellant was simply his dependant. Her attendance at the hearing would not have advanced matters and in any event it was reasonable that she would have wished to remain with her brother to ensure that he was safe. His headache could have been symptomatic of a serious illness such as bacterial meningitis. The Appellants had intended to pursue their appeals. The judge had been alerted to a problem and should have done more before electing to proceed in the Appellants' absence. The decision and reasons should be set aside and the appeals reheard before another judge in the First-tier Tribunal.

8. Mr Jarvis for the Respondent submitted that the judge had given adequate reasons for proceeding in the Appellants' absences and had dealt with the evidence provided. The Appellants had done nothing to prepare for the hearing. The decision and reasons should stand.

Material error of law

9. With considerable regret the tribunal must find that the judge erred by proceeding in the Appellants' absence. He cannot be blamed. Any experienced First-tier Tribunal judge in the Immigration and Asylum Chamber will be only too well aware of the unfortunate number of last minute, ill founded adjournment applications which are made, which cause delay to other claimants and substantial wasted public resources. In the present appeals directions had not been complied with, a default for which there has been no explanation even now. It would also have been obvious to the judge that both Appellants had raised their asylum claims long after their entry to the United Kingdom. The foreshadowing of an adjournment application made to the Home Office Presenting Officer the previous day had not materialised. As matters appeared to him, and on the information he had, it was reasonable for the judge to proceed.

10. Yet, unknown to the judge, the First Appellant had been examined at Glasgow Royal Infirmary on 20 March 2016, diagnosed with migraine, prescribed aspirin and discharged the next day. No follow up was arranged. Views may differ as to whether that was a sufficient reason to have prevented an appellant with a genuine claim from attending his hearing, or whether it was simply a device to avoid the hearing for which no evidence had been served and for which the Appellants were unprepared.

11. In procedural fairness terms, however, it is the fact that an adjournment application supported by medical evidence had been made to the First-tier Tribunal but had not reached the judge. What the judge would have made of the application is beside the point. It might have caused him to adjourn, with the same reluctance which the present tribunal has in setting aside the judge's decision. It cannot be said that any First-tier Tribunal judge would have been bound to have refused the application. In the circumstances, it seems to the tribunal that there is no option but to set aside the judge's decision and to order a rehearing.

12. As has been noted above, the approach of the Appellants and their representatives to the conduct of these linked appeals leaves much to be desired. It is the Appellants who have chosen to make protection claims in the United Kingdom and, as the UNHCR Handbook makes clear, the obligation is on them to cooperate fully at all stages of the process. The process makes significant demands on the public purse. The Appellants' representatives should be well aware of the separate duties imposed on them under the 2014 First-tier Tribunal Procedure Rules, above all the overriding objective in rule 4. It is now up to the Appellants to demonstrate that they have a credible protection claim and to ensure that they comply fully with the First-tier Tribunal directions to the best of their ability.

DECISION

The tribunal finds that there is a material error of law in the original decision, which is set aside in its entirety.

The appeals shall be reheard in the First-tier Tribunal before any judge apart from First-tier Tribunal Judge Khawar, on a date to be fixed, at the first available date, at Glasgow hearing centre, because the Appellants live in Glasgow.

Signed Dated

Deputy Upper Tribunal Judge Manuell 19 October 2016