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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003988
	First-tier Tribunal No: HU/60358/2023 LH/03326/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

 

Between

 

MOHAMMAD KASHID REHAN

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Malik KC, counsel instructed by Chancery Solicitors

For the Respondent: Ms Cunha, Senior Home Office Presenting Officer

 

Heard at Field House on 17 January 2025

 

DECISION AND REASONS

 

1.              The Appellant appeals from the decision of the First-tier Tribunal promulgated on 11 July 2024, dismissing his appeal on human rights grounds.

Background to the appeal

2.              The Appellant is a Bangladeshi national who entered the UK as a student on 21 February 2011. Thereafter he had various forms of leave to remain until 30 April 2017 when he became an overstayer. On 25 June 2018 the Appellant applied for asylum.

3.              On 22 June 2023, whilst his asylum claim was still pending, the Appellant made an application for leave to remain on the basis of his family and private life, having married the sponsor on 22 December 2022. That application was refused on 16 August 2023. The Appellant appealed the decision to the First-tier Tribunal.

4.              On 6 September 2023 the Respondent sent a letter to the Appellant's home address inviting him to attend an asylum interview on 22 September 2023. The Appellant did not attend. On 27 September 2023 the Respondent sent letters to the Appellant's address and to his previous solicitors (Londinium Solicitors) notifying him of the potential consequences of his failure to attend the interview. On 31 October 2023 the Respondent wrote to Londinium Solicitors stating that the Appellant had failed to attend a second interview on 26 October 2023. On 16 November 2023 the Respondent wrote to the Appellant and to his current solicitors (Chancery Solicitors) notifying him that his asylum claim would be withdrawn because he had failed to attend the interview on 26 October 2023.

5.              The first hearing of the appellant's appeal against the refusal of his human rights application was adjourned. On 20 May 2024, apparently in response to directions by the First-tier Tribunal, the Respondent filed four letters which were sent to the Appellant notifying him of his asylum interviews and the withdrawal of his asylum claim.

6.              On 26 June 2024, the day before the adjourned hearing, the Appellant filed a witness statement stating that neither he nor his solicitors had received any of the letters and that he was not aware of the withdrawal of his claim. Neither the Appellant's original skeleton argument or a supplementary skeleton argument for the First-tier Tribunal appeal made any reference to his asylum claim or its relevance to the issues in the human rights appeal.

7.              The adjourned appeal hearing took place on 27 June 2024. The Appellant was represented by Mr Malik KC and the Respondent by a Presenting Officer. As recorded at paragraph 7 and 8 of the decision, the agreed issues in dispute related to the Article 8 claim. The Appellant was not cross-examined during the hearing about his evidence in relation to the withdrawn asylum claim. In submissions, counsel for the Appellant submitted that as the Appellant's evidence on that point had not been challenged, the Respondent could not rely on his alleged failure to attend the asylum interview in order to treat his asylum claim as withdrawn. The judge gave the Presenting Officer time to consider his position; the Presenting Officer did not seek leave to cross-examine the Appellant but made further submissions on the issue.

8.              The judge dismissed the appeal. At paragraphs 19-26 of the decision, the judge considered whether the Appellant's asylum claim had been withdrawn. She noted that the Appellant's GP records contained notes of two requests by the Appellant for sick notes to cover two asylum interviews on two separate dates corresponding to the dates of the interviews in the appointment letters. Having given herself a Lucas direction as to the significance of lies, the judge concluded [§26] concluded that the Appellant could not be relied upon as a witness of truth and made a finding that he had "sought to evade the two asylum interviews and provided untruthful evidence in support of this claim with the intention of bolstering his appeal."

9.              The judge went on to dismiss the Appellant's Article 8 appeal. At paragraph 34(a), considering public interest in maintaining effective immigration controls as part of her proportionality analysis, the judge noted the Appellant's lengthy period without leave, and then stated:

"I also weigh into the balance to a lesser degree, his false statement with regards to the asylum interviews. He had full knowledge of the consequences of his statement when he signed it. His behaviour undermines the integrity of the system of immigration control which does not operate under strict rules of evidence and may be considered to affect his suitability under the Rules although I make no finding on that issue."

10.          The Appellant sought permission to appeal on three grounds. First, he asserted that the First-tier Tribunal's decision was procedurally unfair because the conclusions of the judge at paragraphs 23-25 of the decision were not put to the Appellant during the hearing. Second, the Appellant asserted that the judge erred in her approach to the issue of whether there were 'insurmountable obstacles' to family life continuing outside the UK. Third, the Appellant contended that the judge erred by failing to consider, as a factor relevant to the proportionality of removal, the prospects of success in a subsequent application made from outside the UK. Permission to appeal was granted on 28 August 2024 by First-tier Tribunal Judge Sills.

Decision

Ground one - procedural fairness

Submissions

11.          Although Mr Malik accepted that the GP notes undermined the Appellant's evidence that he did not receive the asylum interview invitations, he maintained that the Appellant's evidence that he had not received the notice of withdrawal of his asylum claim was nonetheless capable of belief. Authorities including AM (fair hearing) (Sudan) v SSHD [2015] UKUT 656, Abdi v Entry Clearance Officer [2023] EWCA Civ 1455, Ullah v SSHD [2024] EWCA Civ 201 and TUI UK Ltd v Griffiths [2023] UKSC 48 established a general principle that where the evidence of a witness is to be rejected, it should be challenged at the hearing. Because of the importance of procedural fairness in the court process, the question of materiality did not arise: the court should not ask what would have happened had the unfairness not occurred: R ( Taj) v SSHD [2021] EWCA Civ 19, [2021] WLR(D) 41 at §50(iii). Mr Malik submitted that the proper course of action in this case would have been for the judge to give the parties the opportunity to address the GP evidence properly.

12.          On behalf of the Respondent, Ms Cunha relied on the Rule 24 response. She noted that Abdi and Ullah involved very different contexts to this appeal. TUI v Griffiths made it clear at §§61-68 that there were exceptions to the rule that cross-examination was required before rejecting witness evidence; those exceptions included where the contemporaneous documents rendered later written statements obviously incredible, so that cross-examination would not add anything. That was the case here: the judge had been entitled to take the GP evidence into account, and to conclude that the Appellant's credibility was undermined. There had been no need for the Respondent to cross-examine the Appellant and no unfairness in the First-tier Tribunal's decision.

Discussion

13.          It is trite that whilst the First-tier Tribunal has broad powers to decide the procedure it adopts in a particular hearing, it must ensure that it acts fairly. It is also well-established that what fairness requires is context-sensitive and an overall judgment must be made in light of all the circumstances of the particular case: see Abdi at §29. Fairness will generally require that a witness be cross-examined before his evidence is rejected by a tribunal. That general principle is not limited to cases where dishonesty is alleged, and is necessary for the integrity of the court process because it enables the tribunal to reach a sound conclusion: TUI at §70. However, the rule should not be applied rigidly; as a rule of fairness, it is a flexible principle requiring a more nuanced judgment and there are obvious exceptions where it may not apply: TUI at §§61-69. One such exception is where the contemporaneous documents render evidence asserted in a witness statement "simply incredible": TUI at §62. In all cases, what fairness requires is context-sensitive and depends on the facts of a particular case.

14.          Tribunal proceedings are adversarial, but that does not mean that the judge's role is confined to simply reviewing only the parts of the evidence which have been addressed in cross-examination and submissions. As the Court of Appeal made clear in SSHD v Maheshwaran [2002] EWCA Civ 173 at §3-4, a tribunal judge is expected to consider all the evidence, and to examine carefully the documents which have been produced to them; points which have not been addressed will sometimes arise upon further consideration of the evidence after the hearing. Where an appellant has made inconsistent statements in evidence, the Court of Appeal noted [§5]:

"Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds."

15.          In this case, the appeal before the First-tier Tribunal was against the decision of the Respondent to refuse the Appellant's application for leave to remain on human rights (Article 8) grounds. The issues before the First-tier Tribunal, which the parties were recorded as agreeing, all related to the Article 8 claim. It is apparent from the determination that the issue of whether the asylum claim was pending was raised for the first time in the appeal by the Appellant in closing submissions. The issue had not been previously set out in the Appellant's original appeal skeleton argument. Nor was it addressed as relevant to Article 8 in the Appellant's supplementary skeleton argument.

16.          The Appellant had produced a witness statement dated 26 June 2024 in which he stated unequivocally that he had not received the letters inviting him to an asylum interview, and that his previous solicitor had not received such a letter nor informed him of such a letter. It appears from §19 of the decision that in his submissions to the First-tier Tribunal, Mr Malik implied that the letters sent by the Respondent "may well not have been sent to the addressees". The judge referred [§25] to the Appellant's GP records as "unambiguous" evidence that the Appellant had in fact been aware of the invitation letters. I agree. That evidence was clear and in my view was not capable of any other interpretation.

17.          Did fairness require the judge to put the inconsistency to the Appellant before rejecting the assertion in his witness statement? If the judge had confined her consideration to the purely factual issue of whether the asylum claim was still pending, then I would have no hesitation in answering 'no' to that question. The situation in this case was one of the exceptions to the general principle identified in TUI: the contemporaneous evidence in the GP records rendered the Appellant's later assertion in his witness statement that he had not received the invitation 'simply incredible'. The Appellant's representatives had filed evidence which was clearly inconsistent with his witness statement and had chosen not to explain or draw attention to the glaring inconsistency. There was no unfairness in the judge not putting to the Appellant an obvious inconsistency which arose entirely from his own evidence or in not giving the parties the opportunity to comment subsequently. The factual finding at §22 that the Appellant had received the invitation letters and been aware of the interviews was one which was entirely open to the judge.

18.          Mr Malik's fallback submission was that the judge was nonetheless required to put to the Appellant the specific question of whether he had received the notice of withdrawal of his asylum claim, since absent proper service of that notice, there was no legal decision to withdraw the claim. I reject that submission. The notice of withdrawal was sent to the same address for the Appellant as the invitation letters which the judge found that he had received; it followed two previous letters warning the Appellant that if he did not provide an explanation for his failure to attend his asylum interviews his asylum claim would be withdrawn. In the circumstances, it was entirely open to the judge to conclude that the Appellant had received all of the letters addressed to him and that the asylum claim had been properly withdrawn, without putting that specific point to the Appellant.

19.          The judge was not determining the asylum claim; there was no asylum appeal before her. The absence of a pending asylum claim simply removed a factor which was potentially relevant to her consideration of Article 8 proportionality. Had the judge simply made a finding of fact that the asylum claim was no longer pending, and then gone on to consider the Article 8 appeal on the basis on which it had been argued before her, then there could have been no criticism of her approach.

20.          However, the judge went considerably further. Having rejected the Appellant's explanation, she considered that "given the significance of lies in this case" it was necessary to give herself a Lucas direction [§24]. Notwithstanding that direction, she found at [§26] that the Appellant "could not be relied upon as witness of truth [sic]" and made a further finding that "the appellant has sought to evade the two asylum interviews and provided untruthful evidence in support of this claim with the intention of bolstering his appeal". The basis for those two findings is unclear from the judge's reasoning, and neither flowed automatically from her finding that the Appellant had in fact received the asylum interview invitation letters. More importantly, the findings at §26 went considerably beyond the position taken by the parties on the Article 8 appeal. It was not suggested by the Respondent in the refusal letter or submissions that the Appellant had improperly sought to bolster his Article 8 appeal, or that he was lying about his family or private life in the UK, but only that on the facts his removal was not disproportionate to a legitimate aim. Further, at §34 the judge took the appellant's false statement with regards to the asylum interviews as behaviour which "undermines the integrity of the system of immigration control" and which was hence a factor relevant to her proportionality assessment. Again, this went considerably beyond the position taken by the Respondent in the refusal letter or in submissions.

21.          As the judge considered that the Appellant's inconsistency with regards to the (withdrawn) asylum claim was a fundamental issue of credibility which was potentially material in her assessment of proportionality and hence in her decision on the Article 8 appeal, then given that it had not been put in issue by either party, fairness required her to raise her concerns with the parties and invite their submissions. I consider that the judge's failure to do so was procedurally unfair.

Ground 2 - insurmountable obstacles

22.          Mr Malik submitted that the First-tier Tribunal had erred by failing to consider or apply authority in Lal v SSHD [2019] EWCA Civ 1925 and R (Agyarko) v SSHD [2017] UKSC 11 to the question of whether there were insurmountable obstacles to family life continuing outside the UK. The Tribunal was required to adopt a two-stage approach, asking first whether the alleged obstacle to continuing family life amounted to a very significant difficulty, and if it met that threshold then asking whether it would be impossible or entail very serious hardship for the appellant or his partner or both; the test should be applied in a 'practical and realistic sense' by reference to the particular characteristics of the individuals concerned. Mr Malik submitted that the judge had not referred either expressly or implicitly in her decision to Lal or Agyarko and had not applied the test in the practical and realistic sense required.

23.          I do not accept that submission. The factors on which the Appellant relied were set out at §§28-29 of the determination. At §31, the judge stated

"I do not find there is evidence that shows it is more likely than not that they would face very significant difficulties in Bangladesh."

24.          That seems to me to be the first stage of the Lal approach; having concluded that the Appellant's case did not meet that threshold, the judge was not required to consider the second stage. The judge gave reasons for finding that the factors relied upon by the Appellant (difficulty in his wife obtaining employment as a teacher, and the availability of fertility treatment in Bangladesh) did not amount to very significant difficulties. There was no error of law in her approach.

Ground 3 - Proportionality

25.          The Appellant's primary case on Ground 3 was that the First-tier Tribunal had erred by failing to consider the likelihood of a further application from outside the UK succeeding as a factor relevant to proportionality. Mr Malik noted that the Respondent had accepted in the refusal letter that the Appellant met all of the requirements in the relevant Immigration Rules (E-LTRP of Appendix FM) bar that of immigration status; it was therefore certain that if the Appellant left the UK and re-applied for entry clearance as a partner from Bangladesh, his application would succeed. That was a factor identified in Agyarko at §51 as one which might remove the public interest in the Appellant's removal. He further noted that the Appellant's asylum claim had been pending for five years before the Appellant was invited to interview; that delay was also relevant and material to the assessment of proportionality ( EB (Kosovo) v SSHD [2008] UKHL 41.

26.          Ms Cunha sought to argue that the delay in resolving the Appellant's asylum claim was of his own making, but in any event the Appellant had benefited because he had been able to build private and family life and to make his human rights application. The judge had considered the public interest in considering whether or not there were unjustifiably harsh consequences of removal. The judge's findings on credibility were a factor which could be taken into account in refusing a future application on suitability grounds; it could not be said that a future application was certain to succeed.

27.          Given my conclusion on ground 1, I have already found that the judge's consideration of proportionality was flawed because of her approach to the issue of the asylum interviews and the Appellant's credibility. It is right, as Mr Malik says, that the Respondent was satisfied that all of the requirements in the Immigration Rules bar immigration status were met. I reject Ms Cunha's suggestion that the delay in determining the asylum claim was due to the Appellant; there is no suggestion that he absconded or in any way was non-compliant in the period between his claim and the first invitation to a substantive asylum interview in September 2023, five years after he had made his claim. The judge was obviously not bound to find as a result that the public interest in immigration control was outweighed by either the prospects of success in a future application from Bangladesh or by the Respondent's delay in determining the Appellant's asylum claim, but both were relevant factors which she was required to consider and weigh in the balance. I consider that it was a material error of law for her not to have done so.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing of the Article 8 appeal before a differently constituted Tribunal. The finding that the asylum claim was validly withdrawn is preserved.

 

 

L Hirst

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

13 February 2025