Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11904/2017

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On 12 November 2018
On 14 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

s s
(anonymity direction maintained)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Appellant in person.
For the Respondent: Ms Aboni, Home Office Presenting Officer.

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Chapman promulgated on 18 December 2017 in which he dismissed the Appellant's appeal on asylum grounds, humanitarian protection grounds and human rights grounds against a decision of the Respondent dated 3 November 2017 refusing a claim for asylum in the United Kingdom.

2. The Appellant is a national of Zambia born on 13 January 1979. His immigration history dates back to in or about 2001: there is some dispute as to its earlier stages which I will comment upon briefly in due course. Be that as it may, it does not appear to be disputed that by the end of 2001 the Appellant had applied for further leave to remain in the United Kingdom as a student, and was then granted leave until 15 September 2002. A further application for leave to remain as a student was refused in January 2004. A further application was ultimately refused on 14 August 2007 with no right of appeal. On 16 August 2007 the Appellant was served with documents indicating that he was liable to be removed from the United Kingdom. However, it appears that the Appellant did not come to the attention of the authorities again until he was arrested on 16 February 2017; he was detained pending removal. On 21 February 2017 he made an application for leave to remain pleading Article 8 of the ECHR; the application was refused on 2 March 2017. The Appellant then made a claim for asylum: a screening interview was conducted on 16 August 2017 and a substantive asylum interview was conducted on 15 September 2017.

3. The core basis of the Appellant's asylum claim was that he feared persecution in his home country on the grounds of his sexuality.

4. The application for asylum was refused for reasons set out a 'reasons for refusal' letter ('RFRL') dated 3 November 2017. The Secretary of State did not accept that the Appellant was homosexual as claimed: see in particular paragraphs 34-42 of the RFRL.

5. The Appellant appealed to the IAC. He lodged a notice of appeal with the assistance of representatives Rockland Law of Newcastle, Staffordshire.

6. In due course the appeal was listed to be heard in Birmingham on 14 December 2017. Shortly before the due hearing correspondence was received from the Appellant's then representatives by way of letter dated 4 December 2017 saying that they no longer represented the appellant "due to funding issues". The letter included a "request on his behalf that this matter be adjourned so that he can seek legal aid in order to have a fair hearing". It was also suggested that the Respondent's bundle had not been duly served.

7. The request for an adjournment was considered by the Tribunal and refused in a decision of the Designated First-tier Tribunal Judge at Sheldon Court in these terms:

"The application for an adjournment so that the Appellant can obtain a copy of the Respondent's bundle is refused because the bundle was sent on 24 November 2017 and it is assumed it has now been delivered. The appeal will proceed as listed even though the Appellant is without legal representation. The IAC is a specialist Tribunal and often hears appeals from people without legal representation."

8. The appeal remained listed for 14 December 2017 on which date the Appellant appeared unrepresented before the Tribunal. The Appellant renewed his request for an adjournment orally before the First-tier Tribunal Judge. The Judge refused the application and proceeded with the appeal. The appeal was dismissed for reasons set out in the Judge's 'Decision and Reasons'.

9. The Appellant sought permission to appeal to the Upper Tribunal. He was again assisted in this regard by Rockland Law - although again in due course he appeared at the hearing unrepresented.

10. The grounds of appeal are in the following terms:

"The Judge should have agreed an adjournment given the 'vulnerability' and historic mental health issues evidenced. His GP presented in his letter an ongoing report of his condition since 2004. [SS] expressed that he did not feel he could do the hearing without representation.
The Judge wrongly attempts to assess [SS]'s psycho-cognitive ability for the hearing. It was appropriate to adjourn the hearing in such circumstances.
At paragraph 17 of the determination it seems to claim/refer to evidence in respect of 'Zimbabwe'. What was this to do with [SS]'s appeal? The error causes confusion and undermines the determination.
On balance we submit it is fair to re-hear the matter."

11. Permission to appeal was granted by First-tier Tribunal Judge Bird on 22 January 2018. The grant of permission is in these terms:

"It is arguable that in failing to adjourn the matter, the Judge may have acted unfairly in attempting to assess the Appellant's ability to represent himself given the accepted diagnosis of depression and the Appellant's cognitive differences - see paragraphs 24 and 25 of the determination. An arguable error of law has thereby been made."

12. I pause to note that the basis of challenge, and the grant of permission to appeal, are both on the narrow ground of the refusal to grant an adjournment. Judge Bird does not comment upon the issue in respect of the reference to Zimbabwe, and does not grant permission to appeal on this point. I note that whilst it is clearly the case that the Judge has referred to Zimbabwe rather than Zambia at one point in the decision (paragraph 17), in overall context it is absolutely clear that this is no more than a slip. The reference appears in one of the preliminary paragraphs setting out the documentation considered and is essentially in these terms, "I have carefully read and considered the Respondent's bundle which includes the interviews with the Appellant, his written account of events in Zimbabwe and the refusal letter." It is clear from all other relevant references in the decision that the Judge had well in mind that he was dealing with an Appellant from Zambia who was expressing a fear of return to Zambia on the basis of conditions in Zambia. Accordingly, as I say the issue before me is narrow.

13. The First-tier Tribunal Judge set out in the body of the decision evidence in relation to the Appellant's medical circumstances (paragraphs 18 and 19). I have been able to cross-refer the Judge's summary - in particular at paragraph 19 - to the documents that were before the First-tier Tribunal. It seems to me that the Judge's summation of those documents is appropriate and accurate and does not omit anything of material impact. In particular, the Judge identifies a letter dated 10 January 2012 from a clinical psychologist in neuropsychology which details something of the Appellant's medical history and his concerns over cognitive deficit.

14. It may be helpful if I set out in more detail some of the key passages of the neuropsychologist's 'Summary and Conclusions' which are in these terms:

"[SS] is a 32 year old gentleman with a history of epilepsy, complaining of short-term memory, concentration and anxiety difficulties. [SS] also reports a history of depression, and current elevated levels of distress (including some biological features of depression). With the exception of glaucoma he reports on an otherwise insignificant medical and psychiatric history.

[SS]'s performance on the Test of Premorbid Functioning - UK version (TOPF - UK) and the WAIS-IV verbal comprehension index provide an estimate of premorbid intellectual and memory functioning in the average range relative to his age matched peers.

Based on his WAIS-IV performance there is no reliable difference between his verbal and non-verbal reasoning abilities, with both measured to fall within the average range and at a level consistent with estimates of premorbid functioning.

[SS]'s WMS-IV scores indicate globally depressed memory indices (low average range) when considered in the context of both his wider level of intellectual functioning and estimates of premorbid functioning. That said none of his memory index scores would be considered impairment relative to his age-matched peers in the general population.

[SS]'s psychometric test performance also indicates a relative weakness in speed of information processing (WAIS-IV PSI) and a possible impairment in divided attention (based on DKEFS Trail Making Test).

On balance, given the psychometric test results, his medical history, and the self-reported history and development of the cognitive dysfunction, it seems most likely that the relative impairments in memory functioning and divided attention and the relative weaknesses in speed of processing are secondary to the epilepsy, possible side effects from the anti-epileptic medication, and also elevated levels of psychological distress. Nonetheless, I would recommend that I provide [SS] with a follow-up neuropsychological assessment in about 9-12 months time in order to determine whether the difficulties highlighted in this assessment are likely to be static or dynamic in nature.

Although there were mixed reports within the current assessment in relation to both the nature and extent of his current mental health difficulties, there did seem to be some evidence of features of depression. I wonder whether he might benefit from either a Neuropsychiatric assessment or from accessing IAPT Mental Health Services within primary care."

15. It is to be noted that this report is from January 2012. The Appellant did not provide anything more recent to suggest that his underlying difficulties had developed in any significant way.

16. Further, it is to be noted that whilst the report suggested that the Appellant might be slower in his cognitive processing than he once had been, he remained within the average range for memory recall and general function He would not be considered to be impaired relative to age-matched peers. The report contains no suggestion that the Appellant was unfit to give evidence, or was cognitively impaired such that he was not able to express himself. In this context it is to be recalled that there was no apparent difficulty with the manner in which he expressed himself at his interview. Moreover, in seeking to challenge the decision of the First-tier Tribunal, the grounds of appeal drafted by his representatives do not identify any specific difficulty or limitation experienced by the Appellant during the hearing: it is not pleaded, for example, that he felt unable to follow the questions being asked by the Judge - and nothing is identified within the body of the decision to suggest that the Judge misunderstood anything that the Appellant might have said.

17. It is also to be borne in mind that at the core of his claim were matters personal to him and his claimed sense of identity. There is nothing in the supporting medical evidence to suggest that the Appellant would have been unable to articulate such matters before the First-tier Tribunal.

18. Having set out the documentary evidence - including a summary of the medical evidence - the Judge gave consideration to the application for adjournment (paragraphs 22-25).

19. At paragraph 22 the Judge notes the issue in respect of not being able to afford to pay his representatives, and identifies that an application for an adjournment had already been refused: he cites the words of the Designated Judge to the effect that the Tribunal is a specialist Tribunal which often hears appeals from unrepresented people. I pause to note in this regard that the Tribunal Service is set up as an adjunct to the Court Service with the aim of providing readily available user-friendly access to justice with less formality and expense. Many Tribunals rarely see legal representatives at all; whilst appellants before the Immigration and Asylum Chamber may often have representation it remains the case that a significant number of appellants are unrepresented. The Tribunal is experienced in general terms in dealing with unrepresented appellants, and also there are protocols in place in respect of vulnerable appellants. It is plain that on the facts of this particular case that the First-tier Tribunal Judge was aware of such practices and procedures and brought them to bear on the facts of this particular case. It is not a sine qua non that an Appellant requires to be represented before the First-tier Tribunal. The only complicating feature here - absent the Appellant's ability to afford a representative - was the issue of whether or not he might have had some significant cognitive deficit.

20. The Judge considers this key issue at paragraphs 23 et seq..

21. The Judge notes that the Appellant confirmed that he had received the Respondent's bundle, and then adds this - "It was clear from his written response that he understood it, had replied to the various points in it, and had collated documents which he considered to be relevant to his appeal." This is a reference to the bundle of documents that the Appellant filed in the appeal under the heading 'my retort' (see First-tier Tribunal Judge's decision at paragraph 19, final bullet point). The Appellant's ability to provide a written response to the issues in the appeal and to provide supporting documentation adequately paginated and sectioned in itself indicated a significant degree of understanding of the issues that were to be considered by the Tribunal.

22. The Judge then says this at paragraphs 24 and 25:

"24. However, he asked for an adjournment in order to be represented. He said he had cognitive problems, and referred me to the medical evidence. I asked the Appellant questions about his medical conditions which he was able to answer competently and without any apparent difficulty in recollection. He explained that he was no longer receiving any specialist care but saw his GP each month to get his medication. He had no plans in place to seek further representation and did not know how he would be able to do so.

25. I noted that the medical evidence was somewhat dated, and did not indicate that there were significant difficulties which might affect the Appellant giving an account of his circumstances. I noted that he had done so at the asylum interview. Bearing in mind the over-arching objective I decided that I could deal with the Appellant's appeal fairly and justly by treating him as a vulnerable person, asking him questions to help him present his appeal, and ensuring that he was cross-examined in an appropriate manner. I therefore decided to refuse the application to adjourn the appeal."

23. As I have observed above, nothing has been raised in the grounds of challenge to suggest that the Judge thereafter did not assist the Appellant by asking him appropriate questions, or that the Judge failed to ensure that the Appellant was cross-examined in an appropriate manner bearing in mind his vulnerability. Indeed no specific criticism has been made as to the conduct of the rest of the hearing, and no particularised issue has been raised as to the Appellant's ability to engage in the hearing.

24. I have set out the grounds of appeal above. For completeness I should say that the Respondent has filed a Rule 24 response dated 27 February 2018 in which the appeal is resisted: it is essentially pleaded that the First-tier Tribunal Judge appropriately noted that the Appellant could not afford to pay his representatives and had no plans in place to seek further representation, that the Judge had regard to the supporting medical evidence, and that the Judge appropriately decided to proceed on the basis that he could facilitate the Appellant's participation in the hearing by treating him as a vulnerable person and making adjustments accordingly.

25. Before me the Appellant sought to expand upon the grounds of appeal by relating the difficulties that he had had in seeking to obtain legally aided representation ahead of the hearing. In part this was because he had been hoping to be able to pay his own representatives and so perhaps had not sought to make alternative arrangements with great vigour. More particularly though, he said that he had been told when he had approached other potential representatives that there was too limited a period of time for representation to be arranged. In this regard it was suggested that there had been inadequate time between the date of the asylum interview on 15 September 2017 and the appeal hearing on 14 December 2017. It may well be that the Appellant had some difficulties arranging alternative representation, but as of the date of the hearing before the First-tier Tribunal Judge, the reality was that he had no representation and there were no active plans in place to secure further representation. In the circumstances I do not see that the Judge can be criticised for deciding - with reference to what the Judge described as the 'over-arching objective' (i.e. paragraph 2 of the Procedure Rules) - that it was appropriate to proceed with the appeal without allowing further time to obtain representation. I am not persuaded that any unfairness arose in consequence.

26. The Appellant also said that he had been advised by his GP that the letter of 10 January 2012 from the clinical psychologist would have been sufficient in itself to demonstrate that he was a person who plainly could not represent himself. I do not suggest that the GP did not make any such observation; however a GP is not necessarily a person with due knowledge and expertise of Tribunal procedures and what is involved in presenting a case before a Tribunal which is well acquainted with dealing with unrepresented and/or vulnerable participants. For my own part I cannot see anything in the letter of 10 January 2012 that suggests a cognitive deficit that would render the Appellant unable to put over what he wanted to put over in respect of his fears of returning to Zambia, or indicate that he was otherwise unable to engage with questions from either the Respondent's representative or the Tribunal. It was also the case - as the Judge observed - that the Appellant was able to put together a bundle of documentation in relation to his circumstances and his concerns motivating his appeal.

27. In the circumstances I find that the grounds of challenge are not established. I do not accept that the Judge fell into error of law in refusing to adjourn the appeal, or that any unfairness resulted from the decision not to adjourn. Far from it: it seems to me that the Judge carefully considered the application, carefully considered the evidence in relation to the Appellant's medical circumstances, carefully considered the Appellant's ability to engage with the issues in the appeal, and has explained adequately and cogently his reasoning for refusing the adjournment.

28. Mr SS did seek to raise some further matters. In particular he expressed concerns about the earlier part of his immigration history, and suggested that perhaps he had been portrayed in the recounting of his immigration history as a person of bad character. However, this was not a matter pleaded in the grounds, and necessarily therefore not a matter in respect of which permission to appeal had been granted. Accordingly I did not permit the Appellant to develop such extra bases of challenge before me.

29. In summary: I find that the First-tier Tribunal Judge adequately considered the application for adjournment and reached a decision on it which was open to him and which he adequately explained; no consequent unfairness is identifiable; in the circumstances there was no error of law in the First-tier Tribunal deciding to proceed with the appeal notwithstanding the Appellant being unrepresented.

Notice of Decision

30. The decision of the First-tier Tribunal Judge contained no error of law and stands.

31. The Appellant's appeal remains dismissed.

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: 2 January 2019

Deputy Upper Tribunal Judge I A Lewis