United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/09506/2016

 

 

THE IMMIGRATION ACTS

Heard at Glasgow	Decisions and Reasons Promulgated
on 29 November 2017	on 01 December 2017

 

Before

 

UPPER TRIBUNAL JUDGE MACLEMAN

 

 

Between

 

SALMAN ABDULLAH MOHAMMAD

(Anonymity Direction Not Made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation:

For the Appellant: Mr S Winter, Advocate, instructed by Maguire, Solicitors

For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

1.              The respondent refused the appellant's protection claim for reasons explained in her letter dated 26 August 2016.

2.              First-tier Tribunal Judge David C Clapham SSC dismissed the appellant's appeal by decision promulgated on 20 April 2017.

3.              The appellant applied on 25 April 2017 for permission to appeal to the UT, stating brief grounds. In a decision dated 23 August 2017 FtT Judge Nightingale explained that those grounds were misconceived, and refused permission.

4.              The appellant applied to the UT for permission on 13 September 2017, stating one ground, headed as "errors of law in relation to AA (Iraq) v SSHD [2017] EWCA Civ 944", set out in sub-paragraphs (i) - (viii).

5.              That application, i n terms of the TP (UT) Rules 2008, rule 23 (1A), now stands as the notice of appeal to the UT.

6.              On 9 October 2017 UT Judge Lindsley granted permission, observing:

It is arguable ... that the decision is not sufficiently reasoned with respect to points 9 - 11 of the revised country guidance in AA ... with respect to [the appellant's] CSID and as to how the appellant would safely reach the IKR at point 20. It is also arguable that there is no article 8 ECHR decision addressing very significant obstacles to integration and ¶276ADE of the immigration rules.

7.              (The latter comment by the judge granting permission does not appear to arise from the grounds of appeal, but the matter was not taken up by the appellant and does not require any resolution, considering the outcome on the grounds.)

8.              The further grounds mainly flow from (i): failure to make clear findings on what documentation the appellant has, or is able to obtain.

9.              In response to submissions, the respondent conceded the point, and the outcome set out below was agreed.

10.          The following, however, needs to be observed.

11.          The appellant's solicitors sent further evidence to the UT: in particular, an expert report under cover of a letter dated 27 November 2017, faxed to the UT at 16:20 that day, and provided to the respondent at about the same time.

12.          Mr Winter said that the evidence would become relevant only of the decision were to be remade, while Mr Matthews indicated that if that stage were reached, he maintained that the evidence should not be admitted.

13.          Mr Matthews referred to the Tribunal Procedure (Upper Tribunal) Rules 2008, rule 15 (2A):

In an asylum case or an immigration case-”

(a) if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party-”

(i) indicating the nature of the evidence; and

(ii) explaining why it was not submitted to the First-tier Tribunal; and

(b) when considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.

14.          He pointed out that the UT had issued its usual directions, citing that rule, and advising parties that failure to comply "will be regarded as a serious matter and may result in fresh or further evidence not being considered by the tribunal".

15.          The directions specify that any notice pursuant to rule 15 (2A) must be sent 10 working days before the hearing of the appeal, at latest.

16.          It was apparent that neither solicitors nor the expert had perceived any necessity to provide evidence promptly, or to comply with rules and directions.

17.          Plainly, the appellant failed to provide the notice required, and there has been unreasonable delay.

18.          This is not a question of insistence on superficial formalities; the respondent was not given an adequate or fair opportunity to consider the proposed evidence.

19.          There is an unfortunate culture of heedless non-compliance with rules and directions in this tribunal, in which present representatives are no better (although no worse) than others.

20.          There would have been a strong case for declining to admit the evidence. The appellant is under an obligation to conduct his case by the rules, even if not specifically directed to do so. He had been so directed, and clearly told of the possible consequences of non-compliance. It makes little difference that the evidence was to go to remaking the decision rather than to legal error; directions require the parties to assume that will happen at the same hearing, and to prepare accordingly.

21.          Although representatives are accustomed to tolerance of non-compliance with rules and directions, they should bear in mind that lenience has its limits, and they could scarcely have complained if this case had been found to go beyond those limits.

22.          On this occasion, the issue is elided by agreement on the further procedure to take place.

23.          The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said at the hearing.

24.          The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.

25.          The member(s) of the FtT chosen to consider the case are not to include Judge David C Clapham.

26.          The FtT in its fresh decision should bear in mind the need to decide clearly the extent to which the appellant establishes (or fails to establish) his case on such matters as whether he has ever had identity documents; the current whereabouts of any such documents; his ability to retrieve or replace such documents; his family circumstances; and his contact, or absence of contact, with family and friends.

27.          The FtT should of course be assisted by clear submissions from both parties on which specific findings it is invited to make, and on their basis in the evidence (or in the absence of sufficient evidence).

28.          No anonymity direction has been requested or made.

 

29 November 2017

Upper Tribunal Judge Macleman