Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12160/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision and Reasons Promulgated
On 13th March 2017
On 14th March 2017

Before

UPPER TRIBUNAL JUDGE COKER

Between

GUOQING CHEN
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant’s appeal on asylum and human rights grounds was dismissed by First-tier Tribunal Judge James for reasons set out in a decision signed by him on 5th December 2016 and promulgated on 12th December 2016.
2. Permission to appeal was sought in an application dated 23rd December 2016, and granted because the judge had failed in his decision to refer to the medical evidence relied upon by the appellant (a Rule 35 report) and that First-tier Tribunal Judge James had failed to give adequate weight to the appellant’s circumstances (notably the medical issues, his detention and his inability to speak English) in reaching his conclusions.
3. The appellant’s solicitors sent to the Upper Tribunal, under cover of a letter dated 23rd February 2017, a Rule 35 report dated 8th December 2016 and the respondent’s reply dated 12 December 2016. In that covering letter the solicitors acknowledge, despite the grounds seeking permission to appeal asserting otherwise, that the Rule 35 report and the response were only available after the hearing. There was no suggestion by the solicitors that either they or the appellant had sent the Rule 35 report to the First-tier Tribunal judge on or after 8th December 2016 or even that they had been aware of its date and content when they drafted the application for permission to appeal.
4. After the hearing had concluded, at which I had stated there was no error of law in the First-tier Tribunal decision, I was provided with a bundle of documents under cover of a letter dated 10th March 2017 upon which the appellant sought to rely. I was also handed a fax which had been sent at 6.49pm on 11th March 2017 stating the solicitors had instructions from the appellant to withdraw his appeal. The fax referred to a “fundamental error” on their part, and that there was no error of law in the First-tier Tribunal’s decision. It is unfortunate that I was not provided with these documents earlier but it is equally unfortunate that the solicitors drafted grounds seeking permission to appeal at a time when it seems, from their fax of 11th March, that they were already aware that the Rule 35 report had not been before the First-tier Tribunal.
5. The application to withdraw the appeal is of course a request for the Tribunal’s consent to withdraw the appeal – see Rule 17(2) Tribunal Procedure (Upper Tribunal) Rules 2008.
6. It is plain the judge did not have any medical evidence before him. He has said so in his decision (paragraph 34, bullet point 16 on page 9) and this is now acknowledged by the appellant’s solicitors.
7. The letter requesting withdrawal of the appeal does not specifically refer to the second ground of appeal in the application for permission.
8. Given that, and that the request for withdrawal was received late – albeit prior to the hearing but still over two months after the application for permission was lodged and some 6 weeks after permission was granted, I do not grant consent to withdraw the appeal.
9. In so far as the second ground is relied upon, the appellant:
(a) Had an interpreter and it is evident the judge ensured the appellant and the interpreter understood each other and that the appellant was given every opportunity to give such evidence as he sought to give;
(b) did not disclose there were any continuing medical issues save that he took Chinese medicine for his stomach ache. He did not suggest that his evidence was impaired because of this or that there was possibly medical evidence that could support his claim;
(c) The appellant did not claim that he had been unable to obtain documents he wished to rely upon or in some other way prevented from presenting his case properly because he was detained.
10. The applicant had sought an adjournment to obtain legal representation but had been unable to find any and was not eligible, he told the judge, for legal aid. Solicitors had advised him in the preparation of his appeal and had drafted the grounds of appeal to the First-tier Tribunal. The judge considered these matters, including that the appellant had first claimed asylum in 2003 which was refused on noncompliance grounds, had then made other applications to the respondent for leave to remain in the UK (some of which were with the assistance of legal representatives) and that at the commencement of the hearing the applicant confirmed he had no documentary evidence to submit and that he had given truthful answers during his various interviews.
11. Although the grounds seeking permission to appeal the First-tier Tribunal decision do not specifically refer to the refusal to grant an adjournment, it is reasonable to infer that the reference to detention is a reference to the appellant wanting an adjournment because he was in detention.
12. The judge plainly considered the appellant’s lack of representation during the hearing and took note that he had received legal advice prior to the hearing and in the preparation of his case, despite being in detention. The lack of English language ability is not relevant – he had an interpreter; there was no reliance on outstanding medical issues.
13. There is no material error of law in failing to grant an adjournment. There is no material error of law in the judge failing to take account of a medical report that was not before him and which the appellant did not intimate may be available or what it might state. The judge took account of the evidence before him and the appellant was not, based on what was before the judge, disadvantaged.

Conclusions:
I do not consent to the withdrawal of the appeal by the appellant.
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision
The decision of the First-tier Tribunal stands.

Date 13th March 2017

Upper Tribunal Judge Coker