Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004658

First-tier Tribunal No: PA/00603/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7TH March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

LH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms Isherwood, a Home Office presenting officer

Heard at Field House on 24 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant appeals to the Upper Tribunal with permission of FTT Judge Shepherd against a decision of FTT Judge Traynor (the judge).
2. Judge Shepherd identified potentially material errors of law in the First-tier Tribunal (FTT’s) decision and specifically was concerned that credibility points may have been raised against the appellant which had not been in the refusal letter or the review. His principal concern, however, related to the ability of the appellant to present his case to the FTT, although he noted that inconsistent reasons had been given for his non-attendance and the judge expressed himself to be satisfied as to the service of notice of the hearing. Judge Traynor was nevertheless concerned whether the appellant had been given an opportunity to present his case, having not attended the hearing before the judge. Specifically, Judge Shepherd said:
“(the judge’s) reasoning is unclear. He says that notice of hearing was sent to the appellant on 2 May 2024, and yet he relies on an earlier email dated 9 April 2024 from City Life Education and Action for Refugees Charity when reasoning that the appellant had had adequate notice. This does not make sense to me. Whilst the Judge confirms in [11] that he allowed extra time on the day of the hearing for the appellant to appear, he does not say that any attempts were made to contact the appellant to confirm that he had received notice of the hearing or to discover why he had not appeared.“
3. Therefore, Judge Shepherd gave permission to appeal the decision, which is otherwise described as being “thorough and well-reasoned”, stating that the grounds were thought to be at least arguable.
The hearing before the Upper Tribunal (UT)
4. At the hearing I established from the appellant that the reason he gave for his non-attendance before the FTT was both the absence of a rail ticket being provided and his ill-health. The appellant confirmed he had received notice of the hearing but indicated that he was suffering from diarrhoea at that time. He said that he had a “doctor’s note”. He also said that he spoke to a lady on “the Tribunal’s Team switchboard” by telephone on the morning of the hearing but was unable to indicate the precise time. He said he did not have a doctor’s letter or medical report for the day in question but indicated that he attended his GP the following day but had received a prescription on 17 July 2024 – the hearing having been fixed for 16 July 2024. He had nevertheless not been given a chance to present his case and “tell his story”. He then explained that his reason for non-attendance was that he did not have a train ticket to attend the hearing.
5. Ms Isherwood said that the appellant had not been consistent about his reasons for non-attendance and there was no record of him contacting anyone at the hearing centre. At the end of the hearing I allowed the appellant an opportunity to confirm, if possible, that at the time of the hearing before the FTT he was suffering any form of illness preventing his attendance at that hearing. I asked him to provide such information to the respondent within seven days (by 4 PM on 7 February), and serve such information on the UT. I emphasised to him that the onus was on him to provide this information. I noted that there was no attack on the substantive merits of the FTT’s decision. If after the seven days allowed to provide evidence of his reasons for failing to attend the hearing and evidence was supplied indicating that it was on genuine grounds of ill-health, a further hearing may have been necessary. If not I indicated that I would then decide the appeal.
6. Within the time set, on 28th of January at 13 .04 the appellant sent to Field House Correspondence, what he described as , a “GP summary”. In fact he sent a photograph taken with an iPhone showing two items. One appeared to be a photograph of a commercially available product described as “blackcurrant flavoured Diorolyte”. The other document appeared to be an illegible copy of a prescription.
7. Ms Isherwood responded by email on 4 February 2025 at 15.45 to indicate that she also found the evidence to be illegible and no date could be seen. She commented that the product appeared to be a non-prescribed commercially available one available over-the-counter and it did not suggest that the appellant had been seen or spoken to by a doctor.
8. A direction was subsequently issued allowing the appellant until 14 February 2025 at 4 PM to provide a legible copy of the documents supplied, otherwise I would determine the appeal based on the evidence I already had. Unfortunately, the appellant’s response to this was to re-submit the documents he had already submitted in the same format. But eventually better quality documents were submitted. They were still extremely difficult to read but not impossible. As I read the contents the item described as a “prescription” above says as follows:
“History: diarrhoea 41 double/7 no vomiting no fever no blood noted in stools intermittent cramp -like abdominal pain just before bowel motions thinks it was as a? result of a pie he ate yesterday no past medical history to similar examination 1036.6 well perfused? Hydrated pulse rate perfused hydrated heart rate 70 min BP 153/87 mmHg sitting abdomen soft mint tender left middle quadrant no rebound or guarding no masses. Felt bowel sounds are normal plan advised self-care with it I/O terrified patient informed me he has a HCA 24 which entitles him to having self acre (sic) items on prescription loperamide two m…. Mg capsules 30 capsule it PTP to FP 10. Diagnosis: enteritis printed on wed 17 July 2024 at 1143 by Doctor Larre Akwanuka signed”
9. The accompanying delivery note refers to some capsules but it is impossible to read their description.
10. It has therefore become necessary to determine this appeal on the limited information that the UT has as to the reasons for the appellant’s non-attendance before the FTT. As Ms Isherwood said, in her response, which is copied below, it appears to be as a consequence of an interview with his GP on 17 July 2024 and suggests that the illness was caused by a pie he consumed the previous day (16 July 2024) -the day of the missed hearing. He was recommended medication presumably consistent with the earlier photograph of the package of medication.
11. Ms Isherwood’s full response was as follows :
“Unfortunately, this evidence does not take the matter any further. This is because the medical note is dated 17 July 2024 refers to the appellant informing the Medical Practitioner that he possibly was having diarrhoea because of a pie he ate the day before (16 July). This information does not indicate that the appellant was sick from midnight of the 15 July and unable to attend the hearing on 16 July has claimed.”
Discussion
12. The document does not certify his unfitness to attend the hearing but in any event appears to relate to a later period as it seems the pie was not consumed until, presumably, after the hearing was due to take place on the 16th July 2024. Indeed, he appeared to say at the hearing in the UT that it “came on” during 16th July 2024. Furthermore, it is inconsistent with his earlier excuse for non-attendance – lack of a rail ticket. The appellant said he communicated his illness to a member of the FTT team but there is no trace of this and he provided limited detail. I have considered the possibility being that the appellant’s first language was not English as he was said by the respondent to speak “Namibian”. Nevertheless, he had been in the UK since 2018 and it is likely therefore that he had a sufficient understanding of English to explain his reasons for not attending the hearing.
13. As far as any unauthorised credibility findings are concerned, these have not been the subject of attack during the hearing before me and I doubt that they were material to the outcome. As Judge Shepherd commented, the decision was “otherwise thorough and well-reasoned”. The judge recorded in paragraph 13 that she had considered all the documents “which he has submitted in support of his application and appeal as well as the information provided by him in his screening interview and his more recent Asylum Interview Record of November 2023”. I would therefore be reluctant to interfere with it on the basis that issues were put which had not been put to the appellant or commented on in the refusal given that the judge carefully considered all the evidence and did not express herself to be satisfied as to any aspect of the appellant’s claim. Indeed there were significant inconsistencies in the appellant’s case which the judge was entitled to take account of when judging his credibility and the weight to attach to his account.
14. Overall, I have been unable to conclude that there was any material evidence that the appellant had been unable to comment on or that there was a procedural unfairness whereby the appellant was unable to put his case.
15. The grounds were thought arguable but having carefully considered the grounds I have decided that there was no material error of law in the FTT’s decision.
Notice of Decision
16. The appeal is dismissed.

W.E.HANBURY

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6th March 2025