Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/01478/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On Wednesday 28 September 2016
On Tuesday 26 October 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR GUENDOUZI HAMZA
(anonymity direction NOT MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER - PARIS
Respondent

Representation:
For the Appellant: Mr R Solomon, Counsel instructed by Jein solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. The Appellant appeals against a decision of First-Tier Tribunal Judge Thanki promulgated on 9 March 2016 ("the Decision") dismissing his appeal against the Respondent's decision dated 20 January 2015 to refuse him entry clearance as a visitor. Permission to appeal the Decision was granted on 15 August 2016 by First-tier Tribunal Judge Page on the basis that it was arguable that the Judge erred in refusing the Appellant's application for an adjournment. The adjournment was sought on the basis that the Appellant's "sponsor" was unable to attend the hearing due to a family emergency which required him to return to Algeria. The matter comes before me to determine whether the First-Tier Tribunal Decision involved the making of a material error of law and, if I so find, to re-make the decision or remit it to the First-tier Tribunal for redetermination.
2. The Appellant is a national of Algeria who applied to enter the UK as a visitor for a period of eight days. The purpose of the visit was stated in the application form to be to "visit some tourist attractions visit some museums and galleries spend one or two days with my brother". The address given in the application form for where he would stay in the UK was an address in Ilford. The address given for his brother is a different address. In the application form, the Appellant clearly stated that he was paying for the trip himself. He answered no to the question at Q65 of the application form ("Is someone other than you paying for all or a part of your trip?").
3. The Appellant's application was refused on the basis that, although he had mentioned that he was refused entry clearance as a student in 2009, he had failed to mention that he was also refused entry clearance in 2008. That omission was said to have damaged his credibility. In addition, the Respondent did not accept the statement of the Appellant's means which was not substantiated by independent documentation. The bank statements produced showed a large deposit, the provenance of which was not clear and the Respondent was not satisfied that the Appellant could afford the cost of the visit. The Respondent did not accept that the Appellant would leave at the end of his visit and found therefore that he was not a genuine visitor and could not satisfy the Rules.
4. The Appellant's appeal was a limited one. He could have challenged the Respondent's decision generally by way of judicial review. However, in his appeal, the only ground available to him was on the basis that the refusal decision breached his human rights by reason of section 84(1)(c) Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That could relate only in the circumstances to Article 8 ECHR. In addition, by section 85A(2) of the 2002 Act, the Judge could have regard only to circumstances appertaining at the date of the Respondent's decision.
5. The Appellant was represented in his appeal by the same firm of solicitors as continue to represent him now. As the Judge noted at [10] of the Decision, the Appellant via his brother and his solicitors were notified of the hearing date of 19 February 2016 on 28 August 2015. In spite of that, as noted at [15] of the Decision, the Appellant's solicitors had failed to supply an appeal bundle. There was no witness statement from either the Appellant or the Appellant's brother in spite of the solicitors having nearly six months to prepare for the hearing.
The adjournment
6. The adjournment was sought by letter dated 17 February 2016. The reason for the adjournment was the inability of the Appellant's brother to attend the hearing. The letter stated as follows:-
"Please note that our client's appeal has been listed to be heard on the 19th February 2016. Unfortunately, the Sponsor of our client Mr Guendouzi Sidali had to travel as a matter of urgency due to a family emergency. Therefore the Sponsor is currently out of town and unable to attend the hearing on 19th February 2016. The Sponsor is away until the situation is resolved.
In the above circumstances, under compelling and compassionate circumstances we humbly request the tribunal exercises its description [sic] in our client's favour and adjourn the appeal."
7. The adjournment request was refused. The solicitors then followed this up with another letter dated 18 February 2016 which reads as follows:-
"Please note the fact that due to privacy reasons and sensitive nature of the family issues, we are reluctant in finding out the nature of the family issues from the sponsor in detail.
Furthermore the sponsor of the appellant is returning to the United Kingdom on Monday. We have forwarded the sponsor's return air ticket"
I note that the air ticket does not appear to have been attached to the letter. The adjournment request was reiterated.
8. There was no response from the Tribunal to that second adjournment request prior to the start of the hearing. In spite of that the solicitors did not attend nor send along a barrister to represent the Appellant. It was said by Mr Solomon in submissions to me that this was because the solicitors were without funds. However, that did not form any part of the request for the adjournment and the solicitors appear to have understood themselves to continue to be instructed by and to represent the Appellant. They did not seek to come off the record. An adjournment having been refused, they should have attended the hearing.
9. The Judge at the outset caused enquiries to be made of those solicitors who confirmed that the sponsor was currently abroad and would be returning on Monday. The solicitor with whom the Tribunal clerk spoke indicated that no-one could attend the hearing, that the solicitors were still instructed but not funded.
10. The Judge noted at [11] to [13] of the Decision the background to the adjournment request. He applied the correct rule at [14] of the Decision (rule 28) - the relevant test being whether it was in the interests of justice to proceed in the Appellant's absence. He noted at [15] Rule 2 of the 2014 Rules which sets out the overriding objective and the obligation to deal with cases fairly and justly. He reiterated his concern that the Appellant and his solicitors had been given a number of months to provide evidence to the Tribunal which they had singularly failed to do. Although he noted that the Appellant's brother was to return to the UK on the following Monday, he was unable to establish that the Appellant would be in a position to proceed for any subsequent hearing, taking into account particularly the failure to provide evidence and the solicitor's indication that they were without funds. The Judge therefore resolved to determine the matter in the Appellant's absence.
Submissions
11. Mr Solomon directed my attention to the case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) and the headnote thereto as follows:-
"If a Tribunal refuses to accede to an adjournment request, such decision could in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284."
12. Mr Solomon focussed squarely on the question of fairness, as did the grant of permission. The question for me was whether, by refusing to adjourn on the basis that the Appellant's brother was unable to attend, the Judge had deprived the Appellant of a fair hearing. The Appellant's brother was present at the hearing before me and ready to proceed with the appeal. The adjournment was the first sought and there was no prejudice to the Respondent in adjourning. He pointed to the bundle of documents which has now been submitted by the solicitors.
13. I asked Mr Solomon what difference the presence of the Appellant's brother could have made if he had attended (bearing in mind that his absence was the only reason given for the adjournment sought). Although there is now a witness statement from both the Appellant's brother and the Appellant himself, neither of those were available before the Judge. The basis of the Respondent's refusal also had nothing to do with the Appellant's brother; this was not a case where the Appellant's brother was paying for the visit and where his own circumstances were at issue. The crucial evidence was that of the Appellant himself. Mr Solomon was unable to point me to anything specifically, although in reply he did submit that the brother's evidence could corroborate the genuineness of the Appellant's visit. He simply submitted that the Appellant would have had someone there on his behalf had his brother been able to attend. The same though is true of the position if his solicitors had attended. It appears that they were unable to do so because they were not funded. However, that was a matter for which the Judge (and I) had no explanation and it did not form the basis of the adjournment request.
14. I also directed Mr Solomon's attention to the very limited ambit of the appeal particularly since the matters raised in the Respondent's refusal and with which issue was taken in the witness statements now before me went to the question of the Appellant's compliance with the Rules. There was no ground of appeal available to the Appellant that the Respondent's decision was not in accordance with the law or the immigration rules. The only available ground was that the Respondent's decision breached the Appellant's Article 8 rights and the evidence did not appear to be directed at that issue. Mr Solomon submitted that the question of whether the Appellant is a genuine visitor had to be approached through the lens of Article 8. He directed my attention to the cases of Mostapha (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Abbassi and another (visits - bereavement - Article 8) [2015] UKUT 00463 (IAC).
15. Mr Tarlow submitted that Mr Solomon was approaching the lawfulness of the Decision with the benefit of hindsight. From the perspective of the First-tier Tribunal Judge, he was aware that there was no bundle from the Appellant, that the Appellant's solicitors were without funds and that the Appellant's brother was not present. Those were all matters which the Judge was entitled to take into account when determining whether the appeal would be able to proceed on a future occasion if he acceded to the adjournment request. That was relevant to determining whether to proceed with the appeal hearing in the absence of the Appellant's brother would be unfair to the Appellant.
16. Both representatives accepted that, if I found an error of law and the error was material so that the Decision had to be set aside, the appeal should be remitted to the First-tier Tribunal for re-making.
Discussion and conclusions
17. I accept Mr Solomon's submission that the issue for me, based on Nwaigwe is whether the refusal to adjourn had the effect of depriving the Appellant of a fair hearing. In circumstances where I now have the benefit of the evidence on which the Appellant would have relied if his appeal bundle had been before the Judge, if his brother (and/or his solicitors) had been present and if the adjournment had been granted, it becomes much easier to determine this issue than it was for the Judge at the stage when he made the Decision.
18. When determining the question whether the adjournment refusal has deprived the Appellant of a fair hearing, it is relevant to consider the nature of this appeal. The only ground available to the Appellant is that the refusal of entry clearance breaches his Article 8 rights.
19. I have read carefully the cases to which Mr Solomon drew my attention. Those set out the principle that Article 8 can be engaged in entry clearance cases and that, if it is, the question of whether a person can meet the requirement of the Rules is a relevant factor to the issue of proportionality. However, as the case of Abbassi makes clear, the question of whether Article 8 is engaged in the first place depends on "the fact sensitive context of the particular case". In that case, Article 8 was engaged by a visit intended to allow the Appellants to mourn at their grandparents' graves which were in the UK with their family also based in the UK. In Mostafa the circumstances were a husband seeking to visit his British citizen wife. However, in Adjei (visit visas - Article 8) [2015] UKUT 0261 (IAC), the Tribunal made clear that the prior question is whether Article 8 is engaged at all. The headnote reads as follows (so far as relevant):-
"The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition".
20. The factual circumstances in Adjei could not be more different than the present case. That case concerned a person seeking to visit her father, stepmother and step-sibling with whom she had lived as a family unit until 1994. That visit was the purpose of the application for entry clearance. Nonetheless, on the facts of that case, the Tribunal did not accept that the Appellant had shown ties of a kind which would even engage Article 8. Compliance with the Rules as a visitor simply did not become relevant.
21. In this case, the position is even starker. The Appellant seeks to enter for a visit of approximately one week. He intends to come as a tourist and whilst he says that he would spend a couple of days with his brother, he was not proposing to stay with his brother but rather would stay in a hotel and the Appellant was himself funding the visit; it is not a case where the Appellant's brother was funding the visit so that the siblings could spend time together. Even if it were, it is doubtful that Article 8 would be engaged. As it is, the Appellant's case on these facts comes nowhere close to showing an engagement of his and his brother's Article 8 rights. Nor is there any attempt in the witness statements now before me to put forward any positive case based on either the Appellant's or his brother's human rights.
22. For those reasons, it is inconceivable that the Appellant's case could have succeeded on the only ground which was available to him. Whatever his brother might or might not have said, based on the nature of the application and the statement of the Appellant's intentions at that time (which were the only matters which the Judge could consider as this was an entry clearance appeal), it is inconceivable that the Judge could have found that Article 8 was engaged. The Appellant was not therefore deprived of a fair hearing by the refusal to adjourn. His case could not have benefitted from the presence of his brother because, in reality, on its facts, his appeal could not succeed on the only ground which was available to him.
23. I note as an aside that the Judge has erred in finding at [22] to [23] of the Decision that the Appellant's grounds in relation to whether the Respondent's decision was in accordance with the law or the Rules should be dismissed. Those were not grounds of appeal available to the Appellant (as the Judge has rightly observed at [6] of the Decision). Accordingly, the Judge should not have gone on to determine those grounds but should have found that there was no right of appeal against the Respondent's decision on those grounds. However, that error of law is not material and could not avail the Appellant. As I have already noted, on the facts and evidence in this case, the only possible outcome on the only ground available to the Appellant was that Article 8 was not even engaged.
24. For the above reasons, I am satisfied that the refusal to adjourn was not such as to deprive the Appellant of the right to a fair hearing for the simple reason that the only issue which that hearing could have determined was one which would be entirely unaffected by the presence or absence of the Appellant's brother, bearing in mind the purpose of the Appellant's visit as stated in the application for entry clearance. In the alternative, even if I had found an error of law in the Judge's refusal to adjourn, I would not have set aside the Decision. As already noted, the only ground available to the Appellant is that the refusal of entry clearance breached his Article 8 rights. On the evidence which is now before me, and the purpose of the entry clearance application (to come to the UK as a tourist albeit including spending a couple of days with his brother), a challenge on that basis could not get off the ground.
25. If the Appellant wished to challenge the substance of the Respondent's decision under the Rules, his remedy was to seek judicial review. As noted in the headnote in Adjei, in which similar circumstances arose as in this case, any findings of fact made by the Judge in the First-tier Tribunal appeal should not be considered as binding. The Judge should not have made those findings at all in the circumstances of this case.
26. For the foregoing reasons, I am satisfied that there is no material error of law in the Decision and I uphold it.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision promulgated on 9 March 2016 with the consequence that the Appellant's appeal is dismissed.

Signed Date 24 October 2016
Upper Tribunal Judge Smith