Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03973/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 December 2017
On 9 January 2018

Before

UPPER TRIBUNAL JUDGE LANE

Between

clement munyinda masheke
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Not present or represented
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Clement Munyinda Masheke, was born on 29 May 1969 and is a male citizen of Zambia. The appellant had appealed against the decision of the respondent dated 7 April 2017 to refuse him asylum or humanitarian protection. He appealed to the First-tier Tribunal (Judge Greasley) which, in a decision promulgated on 2 June 2017, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The Upper Tribunal has received a letter from the appellant's previous solicitors (Nathan Aaron) which indicated that they were without instructions and were unable to continue the retainer. I note that the notice of hearing for 18 December 2017 was served by second class post on both the appellant and his last known address in London and on the solicitors on 13 November 2017. Given that the solicitors did not seek to withdraw until 4 December 2017, there has been good service upon them and, in the light of the fact that there is nothing on the file to indicate that the copy of the notice sent directly to the appellant has failed to reach him, I was satisfied that he has been duly served. The appellant has not given any reason for failing to attend the Upper Tribunal hearing. In the circumstances, I am satisfied that I should proceed with the hearing in the absence of the appellant.
3. The appellant complains that the judge erred in law by refusing to grant an adjournment made at the First-tier Tribunal hearing by his representative. After the judge had heard the representations of both representatives on the adjournment application, the judge had refused it and the appellant's representative withdrew, taking no further part in the proceedings. The appellant himself was not present at the hearing before the First-tier Tribunal. The judge considered the adjournment application and his reasons for refusing it at [25-27]. The judge relied upon and cited Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC). The judge declined to place reliance upon a photocopy of a statement of fitness for a work certificate provided to the Tribunal; it was claimed that the appellant had acute back pain and was not fit to work and had been advised to rest in bed for one week from 23 May 2017. The hearing before Judge Greasley took place on 24 May 2017 at Hatton Cross. The judge recorded the fact that there was no "adequate explanation indicating why the lateness statement [of unfitness for work] advised bed rest for one week at an earlier letter issued by the same doctor on 19 May [2017] made no such reference to such advice and simply mentioned that the appellant had been given analgesia to relieve pain and an expression of hope the appellant would be better in one week." The judge drew attention to the fact that the earlier statement made no reference of the appellant being unfit to work. The appellant's representatives had also complained to the judge that his firm had only been instructed to act by the appellant on 19 May 2017, four days prior to the hearing.
4. I find that it was open to Judge Greasley to draw attention to the inconsistent nature of the medical evidence (such as it was). It was also open to the judge to attach little weight to a photocopy of a fitness for work statement where no explanation appears to have been given for the unavailability of the original document. In addition, although the judge does not say so in terms, it is patently clear from the facts in this case that there was no medical evidence which indicated that the appellant was unfit to attend the Tribunal hearing; an individual may be unfit for work but may still be fit to attend court. I also find that, notwithstanding the late date on which the appellant's representatives had been instructed, it was open to the judge to conclude that the representatives had sufficient time within which to prepare the case. But I am satisfied that the judge has addressed all the issues arising from the adjournment application and he has determined those issues in a way which was open to him. I am satisfied that he has had regard to relevant legal provisions, in particular the need to provide a fair hearing to the appellant.
5. The grounds of appeal appear to deal solely with the refusal of the adjournment application. The grant of permission likewise concerns the adjournment although I have struggled to understand the first sentence of [3]. Given that the grounds of appeal solely concern the adjournment, I see no reason to interfere with the determination by Judge Greasley in so far as it addresses the merits of the appeal. The appeal is dismissed.
Notice of Decision
6. This appeal is dismissed.
7. No anonymity direction is made.

Signed Date 3 January 2018

Upper Tribunal Judge Lane

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 3 January 2018

Upper Tribunal Judge Lane