Tribunal decisions

The decision

IAC-AH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12771/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 March 2017
On 13th March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

sa
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Gibbs, counsel instructed by Kanaga Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Sweet, promulgated on 4 January 2017. Permission to appeal was granted by First-tier Tribunal Judge Page.
Anonymity
2. No direction was made previously, however, as this is a protection matter, I consider it appropriate to make the direction set out below.
Background
3. The appellant arrived in the United Kingdom on 24 October 2010, with leave to enter as a student. Further leave to remain under Tier 4 was granted until 15 October 2016. That leave was curtailed to expire on 3 April 2016 as the sponsor no longer had a licence. The appellant applied for asylum by telephone on 1 April 2016 and was offered a screening interview on 6 May 2016.
4. The basis of the appellant’s asylum claim was that she was born in Jaffna, Sri Lanka, where she lived until the age of 25 when she moved with her family to Colombo. The appellant’s sister was politically active and worked as a proof reader for a journalist, J, who wrote articles highlighting human rights abuses carried out by the Sri Lankan government during the civil war. The appellant visited J when he was detained in Welikade Prison between 2008 and 2009 and brought him food. The appellant’s sister was detained by the Sri Lankan authorities and ill-treated in June 2010 and there were also threats to kill the appellant. The appellant’s sister was later recognised as a refugee in the United Kingdom, following a successful appeal.
5. In refusing the appellant’s claim, the Secretary of State accepted all aspects of her claim except that she was threatened by and of adverse interest to the Sri Lankan authorities. Furthermore, her credibility was said to be damaged because she was thought to have sought asylum only after being notified of a decision refusing to vary her leave to remain.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant intended in person. She applied for an adjournment, because she had been unable to arrange representation in time for the appeal hearing. In addition, none of the appellant’s witnesses were at the hearing and had not provided statements for various reasons. The judge declined the adjournment request and proceeded with the hearing. He dismissed the appeal for identical reasons to those given by the respondent.
The grounds of appeal
7. The grounds of appeal emphasised that the appellant’s sister, partner, parents and the journalist ‘J’ had all been recognised as refugees in various countries. It was argued that the appellant needed legal representation to prepare evidence to support her case and that the judge had acted in a manner which was procedurally unfair in refusing to adjourn the appeal. The grounds further argued that the judge failed to consider the appellant’s Article 8 claim in view of her evidence of being a carer for her severely disabled, wheelchair-bound partner.
8. Permission to appeal was granted for the issues raised in the grounds to be fully argued before the Upper Tribunal on the basis that they “raised an arguable defect of a procedural nature that could have made a material difference to the outcome.”
9. The respondent’s Rule 24 response, received on 10 February 2017 indicated that the appeal was opposed. Otherwise, it was noted that the appellant was refused asylum on 4 November 2016 and that there was more than adequate time to engage the services of a solicitor for the appeal hearing on 20 December 2016.

The hearing
10. Ms Gibbs briefly summarised her two grounds of appeal, stating that it was a breach of natural justice to refuse to grant the adjournment for legal representation and that the judge had failed to determine the Article 8 claim with reference to the evidence before him that the appellant was a carer for her disabled partner who was himself a Sri Lankan refugee.
11. Mr Armstrong relied on the Rule 24 response. He added that at the time of the hearing seven months had passed since the appellant applied for asylum and she ought to have known that she may require legal assistance if the initial decision went against her. Furthermore, the judge primarily refused the adjournment because the application had been refused before the hearing and there were no fresh grounds. He contended that there was no material error in the judge’s approach to Article 8.
12. I had no need to hear further from Ms Gibbs and announced that the judge made material errors of law and that I would be setting aside his decision in its entirety. The parties agreed that the appropriate course would be to remit the matter to the First-tier Tribunal as the appellant had been denied a fair hearing. My reasons are as follows.
Decision on error of law
13. I have had regard to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 regarding the power the First-tier Tribunal has to adjourn or postpone a hearing under its case management powers. Regard should have been had to the overriding objective set out in Rule 2 requiring the Tribunal to deal with cases fairly and justly.
14. I have also had regard to the decision in Nwaigwe (Adjournment: Fairness) [2014] UKUT 00418 (IAC). The crucial question being whether the refusal of an adjournment deprived the affected party of a right to a fair hearing. I have also taken into consideration the Presidential Guidance note no. 1 of 2014 and note that factors weighing in favour of adjourning an appeal, even at a late stage, include whether further time is needed because of a delay in obtaining evidence which is outside the party's control, for example, where an expert witness fails to provide a report within the period expected. That is to be balanced by factors weighing against the grant of an adjournment, namely that the application was not made at the earliest opportunity or is speculative or that it does not show that anything material would be achieved by the delay.
15. In SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 at [13], it was held that when considering whether an adjournment should have been granted, the test was not irrationality or whether the decision was properly open to the judge; the sole test was whether it was unfair. As stated in Nwaigwe, supra, in practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. I find that the appellant in this case has been so deprived.
16. I find from the circumstances that prevailed at the date of the hearing before the First-tier Tribunal, that fairness in this case required that an adjournment should have been granted for the purpose of obtaining a legal representation. That representation could have assisted the appellant and indeed the Tribunal in the preparation of witness statements and other supporting evidence. The refusal of the appellant’s claim occurred approximately six weeks prior to the listing of her appeal. Her appeal was listed on the cusp of the Christmas and New Year holidays and the appellant’s argument that she could not arrange representation until the New Year was plausible. Furthermore, I do not consider it reasonable to expect an asylum applicant to line-up a solicitor just in case her application is refused at an unknown date in the future.
17. Having regard to the case law and the 2014 rules, I find that the decision of the First-tier Tribunal refusing the adjournment was unfair in the circumstances.
18. Furthermore, the judge dispatched the appellant’s Article 8 claim in 4 lines, making no reference to her partner, that he was disabled or a recognised refugee from Sri Lanka despite the appellant having set out those facts in her written application for an adjournment of 18 December 2018 and in her oral evidence.
19. I accordingly set aside the decision of the First-tier Tribunal.
20. I have had regard to the Senior President's Practice Statement regarding remitting an appeal to the First-tier Tribunal for a fresh decision. However, I am satisfied that the effect of the error has been to deprive the appellant of an opportunity to have her case properly put and considered by the First-tier Tribunal. This is accordingly an appropriate case for remittal. The appeal is therefore remitted to the First-tier Tribunal for a fresh decision to be made.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Sweet.

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 her or any member of her 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 21 February 2022

Upper Tribunal Judge Kamara