Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09867/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th February 2017
On 28th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

z n
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr B Ali, Counsel instructed by Aman Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan whose appeal to require international protection was dismissed on all grounds by First-tier Tribunal Judge Sullivan in a decision promulgated on 15th November 2016.
2. Grounds of application were lodged. The first ground states that the judge erred in law when she refused to adjourn the hearing to enable the Appellant to obtain evidence regarding the central issue in the appeal, i.e. the Appellant’s father being an employee of the Afghan National Security Directorate (NDS). It is said that the decision not to adjourn was unfair and particularly so when the judge allowed the Respondent to submit a document on the date of the hearing despite the Appellant’s objections on the grounds of fairness. By acceding to the Respondent’s application it is said that the judge appeared to treat the Respondent more favourably. Ground 2 sought permission to adduce evidence from the NDS and other sources. Ground 3 was that it was wrong to take Section 8 of the 2014 Act into account. Ground 4 states that the approach to the expert evidence was wrong and Ground 5 that the credibility findings against the Appellant were unfair. Permission to appeal was initially refused but granted on renewal to the Upper Tribunal by Upper Tribunal Judge Gill under exclusion of Ground 2 – the request to have permission to adduce further evidence.
3. Before me Mr Ali expanded on the grounds. The judge had made much of the procedural Rules requiring lodgement of documents in time but had nevertheless allowed the Home Office to lodge a country report at the last minute. As such the judge had acted unfairly. Furthermore there was no suggestion in the email referred to by the judge that the documents would not be available.
4. The other grounds were relied on but Mr Ali’s primary position was that because an adjournment should have been granted the decision should be set aside and the case remitted to the First-tier Tribunal.
5. For the Home Office reliance was placed on the Rule 24 response. The judge had dealt with the adjournment application and had considered the request in accordance with the relevant jurisprudence. The Appellant had had plenty of time prior to the hearing to make enquiries to obtain evidence.
6. The Appellant’s representative was given time to consider and deliberate the EASO Report the contents of which were in the public domain and largely uncontroversial. Furthermore the judge had fully considered the application of Section 8 and paragraph 25 and the judge’s appraisal of expert evidence were conclusions entirely open for the Tribunal to reach.
7. I reserved my decision.
Conclusions
8. The crux of the Appellant’s argument is that the judge should not have refused to adjourn the case. Mr Ali made much of the fact that the judge had entertained the Secretary of State‘s desire to lodge a document at the last moment but it seems to me the decision on whether to adjourn the case was a distinct issue. The fact that the judge allowed the country report to be lodged did not prejudice the Appellant. It is inconceivable that a judge would have acted otherwise and actually refused to allow a country report to be lodged. As the Rule 24 notice says (and Mr Ali did not make any submission to the contrary) he was allowed sufficient time to consider the terms of the report.
9. In considering the application and adjournment the judge took guidance from the Rules and also what was said in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). The judge referred to the email exchange (B87-B90) which she noted did not indicate that the security services had expressed a willingness to provide such evidence. The judge commented that the latest email dated 4th October 2016 was such that there was nothing to indicate that there had been any progress in the last two weeks and the judge was not satisfied that a letter would be forthcoming from the NDS. In fact a document from the NDS is now available and forms item 1 of the fresh bundle of documents which was submitted by Mr Ali. Irrespective of that it seems to me that although the judge specifically considered the issue of fairness, the email at B87 of the bundle painted a different picture to the one identified by the judge in paragraph 18. What the email said was that the writer was doing “everything I can” to help the Appellant obtain those documents from the relevant government departments but it would take “some time”.
10. Accordingly the impression to be gleaned from the email - contrary to what was indicated by the judge - was that the document would be available. This was not a point picked up on by the judge who simply said she was not satisfied that such a letter would be forthcoming. The judge was not appearing to challenge what was said in the email but what she decided did not represent its terms and the gloss she put on it did not reflect what the email actually said. It seems to me, although it is a narrow point, that the judge did not interpret the email in the way it should have been interpreted and therefore erred in law in so doing. This is particularly the case when the document in question was fundamental to the Appellant’s claim that he was at risk of persecution if returned to Afghanistan.
11. The appeal therefore succeeds because the Appellant has been a victim of procedural unfairness and the matter will have to be heard afresh. It is not necessary to consider the other Grounds of Appeal.
12. The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the appeal to the First-tier Tribunal.

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

Deputy Upper Tribunal Judge J G Macdonald