Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04746/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 23rd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

Mr Balarasa Sugirtharan
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Coleman of Counsel, instructed by S Satha & Co
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

Details of the Appellant
1. The appellant in this case is Mr Balarasa Sugirtharan, a citizen of Sri Lanka, born on 9 December 1970. The appellant claims to have first entered the UK clandestinely on 13 December 1998. As set out by the Judge of the First-tier Tribunal, the appellant's immigration history is somewhat lengthy. However, for the purposes of this appeal, the appellant, on 19 April 2016, submitted further representations to the respondent which were treated as a fresh asylum claim. In the detailed Reasons for Refusal Letter, dated 21 April 2016, the respondent refused the appellant's claim.
2. The appellant appealed against that decision. In a decision, promulgated on 26 October 2016, following a hearing on 12 October 2016, Judge of the First-tier Tribunal G Jones QC dismissed the appellant's appeal.
3. The appellant appealed and permission was granted primarily on the basis that the judge refused to adjourn the appeal despite the indications from the appellant's Counsel and his solicitors in relation to the appellant's capacity which, it was argued, was an error of law. It was also argued that there was an appearance of bias in the decision and that there was an arguable material error of fact by the judge in relation to when Counsel withdrew and that this might have given rise to an appearance of unfairness. The judge granting permission indicated that whilst it was arguable that the judge did not take into account the fact that there was positive evidence which supported the appellant's case to the extent that he was a member of the British Tamil Forum, it was difficult to see how the evidence before the Tribunal on the papers could have led to the appellant's success. However, permission was granted on all grounds.
Error of Law
4. The only ground pursued before me by Mr Coleman was in relation to the adjournment issue. As I indicated at the hearing, I was satisfied that this ground was made out. Whilst I am not satisfied that the allegation of bias, or even the appearance thereof, has been made out, such is immaterial given that I find that it was unfair to proceed in the circumstances.
5. The Tribunal Procedure Rules 2014 set out the Tribunal's powers in relation to adjournments. The overriding objective at Rule 2 provides that:
"2. - (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
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In addition the Tribunal is given wide-ranging case management powers at Rule 4 including Rule 4(3)(h), which provides:
"In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may -
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(h) adjourn or postpone a hearing."
6. The Presidential guidance in the Upper Tribunal case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) provides that if a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in several respects, including a failure to take into account all material considerations, permitting immaterial considerations to intrude, denying the party concerned a fair hearing, failing to apply the correct test and acting irrationally. The Tribunal went on to find that in practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Crucially, where an adjournment refusal is challenged on fairness grounds, the only question is one of fairness, not whether the First-tier Tribunal acted reasonably and whether there was a deprivation of the affected party's right to a fair hearing (SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 applied).
7. The judge at paragraph [19] of his Decision and Reasons set out in detail the reasons for not adjourning. This included at [19.j] that:
"an adjournment should only be granted for good and proper reason and any suggestion that the Upper Tribunal has indicated that one adjournment should always be granted as a right, irrespective of the reason why same is requested (a view which seems to have some currency), should be firmly quashed."
8. There was no indication that the judge considered the relevant tests under Rule 4 and Rule 2 of the Tribunal Procedure Rules 2014 or that the issue of fairness was considered. Whilst the decision of the judge may have been entirely reasonable, given the perceived lack of preparation by the appellant's representative, I am not satisfied that the appellant was afforded a fair hearing.
9. In particular, the appellant's solicitors faxed the Tribunal the day before the hearing to indicate that there were concerns in relation to obtaining clear instructions from the appellant. Counsel for the appellant before the First-tier Tribunal, in her witness statement submitted subsequent to the appeal, also indicated that she was aware of concerns in relation to the appellant's capacity on the date she was instructed on 30 September 2016, almost two weeks before the hearing, where the instructing solicitors indicated that they were unable to take further instructions but had requested that the appellant attend and informed Counsel that the appellant was diabetic and prone to anxiety and losing consciousness.
10. In addition, although the Judge of the First-tier Tribunal indicated in the Decision and Reasons that "the appellant has chosen not to file any witness statements and has chosen not to give oral evidence" and went on to state that the only material available to the judge was an undated document of representations and the submissions in relation to the fresh claim, I have before me a faxed bundle of documents. This faxed bundle numbered eleven pages. The date on the fax was 11 October 2016 at 16.52, the day before the hearing. It was indicated on the front of the bundle that this bundle was hand-delivered to the courtroom by the clerk. The bundle contained some partly illegible copy extracts from a French passport and some illegible photographs together with a letter from the appellant's GP dated 29 January 2016 in relation to the appellant's physical conditions. There was also a statement from the appellant's brother, Mr Balarajah Balakrisjhnan. Ms Isherwood submitted that she had had sight of this witness statement (although Mr Coleman had not). Although this is not signed or dated Ms Isherwood did not dispute that the statement had been submitted to the hearing and as already noted it was hand-delivered (by Mary-Ann) to Court 16 on 12 October. The statement indicates that the appellant has "become dependent" on his brother and "was like a recluse and shunned others from our community". It is stated that "he has been troubled and has had difficulty getting past his previous experiences".
11. The witness statement continued that the appellant "needs support in everything" and that the appellant's brother had to "remind him to do simple things and had tried to support him as far as possible". The appellant's brother also stated that he had suggested that the appellant should get support "and help with his mental problems but he is reluctant".
12. It was not disputed by Ms Isherwood that there is no reference to this witness statement in Judge Jones' Decision and Reasons, either in his consideration of the adjournment request or in his substantive consideration including of Article 8 and I note that the judge, in terms of that substantive consideration, indicated that he was unable to find that there were any exceptional or compelling circumstances justifying consideration of Article 8 outside of the Rules. However, in reaching that decision he gave no reasons as to why he rejected the witness statement evidence of the appellant's brother, if indeed that was what he did.
13. Although the witness statement evidence was clearly not submitted in compliance with standard directions, again there was no indication that Judge Jones considered and decided to exclude that evidence.
14. Although Ms Isherwood indicated that there was a pre-hearing paper review on this case which was completed by the appellant's solicitors on 26 September 2016 including indicating that they intended to call the appellant and one other witness, I note that the statement from their then Counsel asserts that it was subsequent to this, on 30 September 2016, that his solicitors indicated that they were unable at that point to take full instructions. Therefore I can give limited weight to Ms Isherwood's argument that if the instructing solicitors were aware at the point of the pre-hearing review, in relation to the mental health issues, it ought to have been raised at that stage. The fact that the appellant's solicitors have represented him for many years does not, in itself, preclude a mental health issue only becoming apparent to them at a very late stage.
15. There are a number of concerns in relation to the approach of the First-tier Tribunal. The judge fell into error in his failure to give adequate reasons for rejecting the evidence including the witness statement evidence that was produced prior to the hearing or indeed to give any reasons at all in relation to that evidence which was potentially relevant both to the adjournment request and also the substantive consideration of the case. In addition, I am not satisfied that the judge applied the correct test, which is not that adjournments can only be granted for "good and proper reason" but rather encompasses consideration of the overriding principle, that cases should be dealt with fairly and justly. Although I have also taken into consideration that the President in Nwaigwe considered that the Tribunal should be alert to the doctrine of abuse of process and that where the Tribunal considers that an adjournment application is based on spurious or frivolous grounds or is vexatious, the requirement of demonstrating good reason (which was then the test) will not be satisfied, I am not satisfied that in this case the requirement of fairness was, in the words of the President in Nwaigwe, the "supreme criterion" that it ought to have been.
16. Although there is additionally clearly a dispute of fact between the recollection of the sequence of events by Counsel who appeared for the appellant, and how they are recorded by the judge in the Decision and Reasons, I am not satisfied that that this is material to my decision given the issues that I have identified above.
17. It is not inevitable that the judge would have reached the decision he did in respect of the substantive determination if the appellant had had an opportunity to produce evidence in relation to his mental health condition and if the judge had considered the appellant's brother's evidence in relation to those mental health conditions.
18. I am satisfied therefore that the decision of the First-tier Tribunal contains an error of law such that it should be set aside. No findings are preserved. The decision is to be remitted to the First-tier Tribunal to be heard by a single Immigration Judge, other than Judge G. Jones QC.
Notice of Decision
The decision of the First-tier Tribunal is set aside and is remitted to the Frist-tier Tribunal.
No application for an anonymity order was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
As no fee is payable I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson