Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12695/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 March 2019
On 19 March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

mr A M
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Mustafa, counsel instructed on a direct access basis
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Sri Lanka born on 25 November 1986.
2. He arrived in the UK as a student in September 2005, following the arrest of himself and his uncle by the police in Sri Lanka, following which the Appellant's uncle had committed suicide whilst in custody. The Appellant remained in the UK for five years and then returned to Sri Lanka in 2010 for a wedding. He was asked on his return by his uncle's brother, i.e. another uncle, to give evidence to the Human Rights Commission in relation to his uncle's death in custody and the Appellant did so. He claims that two days later people in a white van came to the family home and told his father that an arrest warrant had been issued for him, following which the Appellant went to stay with an aunt and then came back to the UK four days later via the airport.
3. The Appellant claimed asylum in May 2017 when he underwent a screening interview. He was subsequently substantively interviewed and his asylum application was refused on 22 November 2017.
4. The Appellant appealed against that decision and his appeal came before Judge of the First-tier Tribunal Gandhi for hearing on 14 September 2018. The Appellant, through his Counsel, sought to adjourn his appeal on the basis that Counsel had only been instructed the previous day on a direct access basis and there was no witness statement from the Appellant or his partner nor a bundle of documents including evidence relevant to the basis of claim. The judge refused the adjournment request on the basis the Appellant had had ample opportunity to obtain the relevant evidence from Sri Lanka and that in January 2018 his appeal had already been adjourned precisely in order to obtain such documentation. The judge proceeded to dismiss the appeal on all grounds.
5. Permission to appeal was sought in time on the basis that the judge had erred in promulgating the decision three and a half months after the date of hearing; the judge erred in her assessment of the Appellant's credibility at [32] to [80]; and in respect of Article 8, whilst accepting the Appellant was in a subsisting relationship with a British national of North Korean origin, the judge failed to take into account his partner's medical issues in the assessment of proportionality.
6. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies in a decision dated 22 December 2018 on the basis:
"It is arguable that taking into account the hearing had taken place on the 14th September 2017 and the decision was promogulated on the 28th December the Judge did not consider the evidence with the care he claims and arguably committed an error of law.
It is an essential element of justice that decisions are made in a timely manner."
Hearing
7. At the hearing before the Upper Tribunal, the parties were agreed that in fact permission had been granted on an erroneous basis because the length of time between the hearing and promulgation of the determination was approximately three months, i.e. 14 September 2018 to 28 December 2018, rather than fifteen months. The misunderstanding had arisen because the decision and reasons states erroneously that the hearing took place on 14 September 2017.
8. In his submissions, Mr Mustafa stated that even if there had been a factual misapprehension, he still maintained there were material errors of law in the judge's decision and the issue was not so much whether it was the lapse in time but whether there was a substantial factual error.
9. Mr Mustafa sought to rely on a ground of appeal that had not been previously raised and that is that the judge erred in failing to adjourn the appeal as this prevented the Appellant from having a fair hearing as he did not have the opportunity to provide a written statement or evidence.
10. I pointed out to Mr Mustafa that it was not open to him to raise this ground of appeal because it had not been raised previously and it was now too late. Mr Mustafa submitted that it was a protection claim, which required anxious scrutiny and that, he too had been instructed on a direct access basis and there had been a substantial change in his case in that the Appellant had not previously had the benefit of legal representation but was now being represented by Counsel.
11. Mr Avery helpfully indicated he did not object to this late ground of appeal which the judge had dealt with thoroughly in the decision and reasons.
12. In those circumstances and given that the original basis of the grant of permission had fallen away, I permitted admission of the ground of appeal challenging the failure of the judge to adjourn the appeal.
13. Mr Mustafa sought to rely on the decision in Nwaigwe [2014] UKUT 00418 (IAC) in particular the headnote, where the Upper Tribunal held in practice the question will be whether the refusal deprived the affected party of his right to a fair hearing. The test is one of fairness rather than whether the First-tier Tribunal acted reasonably. Mr Mustafa submitted it was quite clear that the Appellant was for the first time being represented by Counsel. Given that he had raised the protection claim it was vital he gave his evidence in written form with detailed reasons to address the concerns raised by the Respondent in the refusal letter and he had effectively been deprived of that. Whilst he accepted the Appellant was previously granted an adjournment he submitted that his medical condition, which was accepted by the judge, meant that in fairness he should have been granted the opportunity to put in a written statement. He submitted that the absence of such a statement was clearly reflected in the decision of the First-tier Tribunal. The judge made adverse credibility findings due to a lack of explanation by the Appellant and had the matter been adjourned, the Appellant would have had an opportunity to address these points that concern the judge by setting them out in a witness statement cf. [34] of the judge's decision and question 68 at B16 of the Respondent's bundle). He submitted in truth that there was no inconsistency in the Appellant's account here.
14. Mr Mustafa submitted that at [44] of her decision, the judge expected documentary evidence as to the Appellant's medical condition, which could have been provided had the Appellant had the opportunity. Similarly in relation to the judge's findings at [46] and [47] the Appellant could have provided explanations had the matter been adjourned and see also [55] and [59] of the judge's decision. He submitted that for these reasons the hearing was affected and was unfair. He invited the Upper Tribunal to find a material error of law and remit the appeal back to the First-tier Tribunal to give the Appellant a proper opportunity to address these issues by way of a witness statement given that it is a protection claim.
15. Mr Mustafa also sought to rely on the point raised at [17] of the grounds of appeal, that the judge had failed to take into account the Appellant's partner's medical issue in assessing the proportionality of removal. He sought to rely on a letter dated 25 May 2018 from St George's University Hospital which states that the Appellant's partner has hepatitis B. Despite searching of the file however, and this was confirmed by Mr Avery, there is no evidence that that letter had been submitted to the First-tier Tribunal Judge and there is no reference that either in submissions or in her oral evidence the Appellant's partner made reference to suffering from this illness.
16. In his submissions Mr Avery stated that he did not see there was a fairness issue. The Appellant had had plenty of time to prepare for the hearing, which had already been adjourned once previously specifically to permit him to obtain documentation. However the Appellant appears to have done nothing about obtaining those documents in a timely way. The fact that Counsel was only instructed the day before is the responsibility of the Appellant and there was no unfairness. The strongest argument, Mr Avery submitted, is that the Appellant did not have the documentary evidence he wished to rely upon. However he had plenty of time to obtain these documents.
17. He submitted that the judge has covered the Appellant's case in quite a lot of detail and it could not be said that there was anything wrong in his approach to the evidence. He did not consider that the Appellant's partner had health problems and there was no evidence from the Record of Proceedings that this was mentioned before the judge.
18. In reply, Mr Mustafa submitted the Appellant was disadvantaged. All the findings were on the basis that the evidence of the uncle's death was not put before the Tribunal and yet had the matter been adjourned the Appellant could have obtained this evidence. In relation to why the Appellant had not acted before, Mr Mustafa submitted that this was due to the fact that the Appellant had been engaged in substance misuse and was unrepresented.
Findings and Reasons
19. I do not find a material error of law in the decision of the First-tier Tribunal Judge, who gave lengthy and cogent consideration to whether or not it was necessary to adjourn the appeal. The judge at [15] made clear that her findings of fact and the reasons for them were made shortly after the hearing; at [17] that she has been alert to the danger of rejecting evidence because it appears inherently implausible from a westernised viewpoint. She directed herself in respect of Karanakaran [2000] EWCA Civ 11 and GJ [2013] UKUT 00319 (IAC) and also considered at [22] in light of the Appellant's claimed mental health problems, that he was a vulnerable witness and offered the Appellant breaks during the hearing.
20. From [23] onwards the judge considered the issue of the application for an adjournment but found sustainably that it was not necessary for the appeal to be adjourned in order to be fair to the Appellant. She gave a number of reasons for this. Firstly at [26] that although the Appellant talked about being in a state of addiction, the medical evidence before her was not adequate to show this. There was no evidence of being seen by his GP and the evidence at (E) showed only that he went to his GP in 2017 because he was feeling tired and he was given a clean bill of health. She found at [27] that the Appellant has had ample opportunity to obtain documents from Sri Lanka, particularly given that the appeal had been adjourned in January 2018 for that purpose. The judge found although the Appellant had stated he is suffering from depression and there is evidence that he has received counselling for mental health difficulties, there was no medical evidence to show that he has a substance misuse problem nor that he stopped communicating with his family in Sri Lanka after his asylum interview in November 2017 [27].
21. The Judge also found that the Appellant had a longer standing drug habit than he had admitted to and she did not accept in the light of any evidence about treatment that he was no longer addicted over the last one to two months, particularly "as even by his own evidence he is still taking drugs and alcohol albeit he claims he is not dependent on them" [28]. At [29] the judge found that, even if she were to adjourn the appeal, the Appellant would not obtain the documents from Sri Lanka because there was no particular change in his circumstances. The judge then went on to give reasons for finding the Appellant's account not to be credible.
22. Whilst I accept Mr Mustafa's submission that the matters that gave rise to a negative credibility finding could have been dealt with by the Appellant in a witness statement, the essential point here is that it was not accepted by the judge that the reasons for not obtaining the documentation from Sri Lanka or seeking legal representation well in advance of the hearing were credible. Thus the decision in Nwaigwe [2014] UKUT 00418 (IAC) has to be considered in light of that finding, which was clearly open to the judge on the evidence before her.
23. Rule 19 of the Tribunal Procedure (Upper Tribunal) Rules 2005 provides that it is necessary when applying for an adjournment to show good reason why an adjournment is necessary and to provide evidence of any fact or matter relied upon in support of the application. It is also the case that the Tribunal must not adjourn an appeal unless satisfied that the appeal cannot otherwise be justly determined. The Judge did not accept that a good reason had been put forward, particularly in light of the fact that the appeal had been adjourned once already in order for the Appellant to obtain documentation and she gave clear and sustainable reasons for her finding at [23]-[20] of her decision and reasons.
24. In respect of Mr Mustafa's secondary point regarding the failure by the Judge to take into account the Appellant's partner's medical condition in her assessment of the proportionality of removal of the Appellant, it is clear from the Judge's record of proceeding and that of the Home Office Presenting Officer and the absence on the file of the letter dated 25 May 2018 from St George's University Hospital, that this issue was simply not raised before the Judge at the appeal hearing. The Judge clearly cannot be expected to deal with a point that was not even raised before her. Thus there is no substance in this ground of appeal either.

Notice of Decision

There is no error of law in the decision of First-tier Tribunal Judge Gandhi. The appeal is 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 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 Rebecca Chapman Date: 18 March 2019

Deputy Upper Tribunal Judge Chapman