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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005324
	First-tier Tribunal No: HU/57405/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

18 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE P LODATO

DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

 

Between

 

SYED AJHAR MIAH

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Wilford (Counsel instructed by Internations Legal)

For the Respondent: Mr Thompson (Senior Home Office Presenting Officer)

 

Heard at Phoenix House (Bradford) on 10 February 2025

 

 

DECISION AND REASONS

Introduction

 

1.             The Appellant appeals with permission against the decision, dated 13 ^th August 2024 ("the Decision"), of First-tier Tribunal Judge Fisher ('the Judge') to dismiss his appeal on human rights grounds.

 

Background

 

2.             The broad factual background to the appeal is not in dispute between the Parties. In brief summary, the Appellant is a citizen of Bangladesh who was born on 1 ^st February 1966. He first arrived in the United Kingdom on 11 ^th November 2008 with a visitor's visa which was valid until 30 ^th March 2009. He claimed asylum on 28 ^th February 2012, but his application was refused, and a subsequent appeal was dismissed. By 7 ^th June 2012, the Appellant was considered to have exhausted his appeal rights. Further submissions made on his behalf on 30 ^th September 2016 were rejected without a right of appeal on 20 ^th October 2016. The application for leave to remain outside the Immigration Rules on human rights grounds which gave rise to the current appeal was lodged on 20 ^th April 2022, and was refused for the reasons set out in the Respondent's letter dated 13 ^th June 2023.

 

Appeal to the First-tier Tribunal

 

3.             The Appellant appealed against the refusal of his human rights claim. For reasons which shall become apparent, it is important that we set out the procedural history of the appeal proceedings:

 

1. No Appeal Skeleton Argument (ASA) or Bundle was uploaded by or on behalf of the Appellant despite directions for its provision by 13 ^th October 2023 and 10 ^th November 2023;

 

2. The appeal was listed for an attended case management review hearing (CMRH) on 21 ^st February 2024. The Appellant's then solicitors informed the Tribunal that "... we endeavored [sic] to establish contact with Mr. Miah to take detailed instructions regarding his position and any specific requirements he might have to prepare his appeal comprehensively and justly. Despite our repeated attempts through multiple phone calls to his and his emergency contacts, we have been unsuccessful. Mr. Miah's limited literacy and digital literacy, compounded by his lack of an email address, have significantly hampered our ability to communicate effectively with him. ... Given the history of non-compliance, difficulties in communication, and outstanding legal fees, we a contemplating the withdrawal of our representation. This decision does not come lightly but reflects t [sic] complexities and challenges encountered throughout this case."

 

3. The Appellant failed to file an ASA or Bundle by 6 ^th March 2024 in accordance with directions following the CMRH;

 

4. The appeal was listed for substantive hearing on 13 ^th August 2024 before the Judge. Still no ASA or Bundle had been provided by or on the part of the Appellant;

 

5. On 12 ^th August 2024 the Appellant's then solicitors made an application to adjourn the substantive hearing "necessitated by the appellant's severe health conditions, which prevent him from confirming instructions and physically participating in the hearing. ... We have been attempting to obtain instructions from Mr. Miah since June and July 2024. However, his physical and mental health conditions have severely impeded this process. In the last week of July 2024, Mr. Miah provided copies of his medical records and confirmed his inability to travel to London or provide necessary instructions for the preparation of the appeal bundle and his witness statement. ... In early August 2024, Mr. Miah further confirmed that his heel pain and other bodily pains have intensified, necessitating further treatment. His uncontrolled diabetes exacerbates his condition, rendering him physically unfit to travel or confirm instructions." In a further application later that same day, those representing the Appellant wrote " Given Mr. Miah's severe health conditions and his inability to effectively present his appeal under the current circumstances, we request the Tribunal to exercise its discretion and grant an adjournment. This will ensure the appeal is conducted justly and fairly, safeguarding Mr. Miah's right to a fair hearing. We emphasise that we, Diplock Solicitors, do not have instructions to attend the hearing or represent Mr. Miah on 13 August 2024. If the Tribunal decides to proceed with the hearing in the appellant's absence, we request consideration of the adjournment application based on the appellant's medical condition and a decision on this basis."

 

4.             The Respondent was represented at the appeal hearing. In the Decision the Judge stated that:

 

"2. There was no appearance by, or on behalf of the Appellant before me. On the day preceding the hearing, his representatives applied for an adjournment. They asserted that it was necessitated by his "severe health conditions" as set out in the application which allegedly prevented him from confirming instructions and physically participating in the hearing. They indicated that they had been attempting to obtain their client's instructions since June 2024 and added that, in the last week of July 2024, he had provided them with his medical records. It was asserted that he had also confirmed his inability to travel to London to provide his instructions. Due to a lack of resources, that application was not considered within normal office hours. At 9.54pm, the application was repeated, accompanied by an image of some of the Appellant's medication and a copy of a letter concerning a medical appointment on 18 July 2024. The application concluded by explaining that the Appellant's representatives had no instructions to attend the hearing or to represent him at it.

 

3. Given that the application was based upon the Appellant's medical conditions, I found it remarkable that there was no medical evidence to indicate that he was unfit to attend the hearing. If he was fit to attend the medical appointment on 18 July 2024, I was not satisfied that he would be unfit to make the relatively short journey from Sunderland where he lives to Newcastle, especially when the route is served by very good public transport. Similarly, I was not persuaded that the Appellant had been unable to provide his representatives with instructions, as he could have done so remotely if necessary. I had to bear in mind that the Respondent was present at the hearing and ready to proceed. I also had to bear in mind that, at the Case Management Review hearing on 21 February 2024 before Judge Sills, the Appellant's representatives had indicated that they were experiencing issues in obtaining instructions and payment from their client and that they were considering the possibility of withdrawing their services. Judge Sills noted that the Appellant had been directed to upload his evidence in October 2023 and that he had failed to do so. He then directed that it be uploaded by 6 March 2024. The Appellant failed to comply with that direction. In view of the history of the appeal, I was not satisfied that, had I agreed to the adjournment sought of one month, the Appellant would have provided instructions or that he would have attended a hearing. In all of the circumstances, I refused the application and proceeded in the absence of the Appellant and his representatives."

 

5.             In dismissing the appeal, the Judge made the following findings:

1. "I have considered all of the documentary evidence which had been submitted to me, as well as Ms Avar's brief submissions, inviting me to dismiss the appeal. However, apart from his Notice of Appeal, the Appellant had not submitted any supporting documentary evidence" [5] .
2. "He indicated, on his application form submitted in April 2022, that he had lived in the UK for 13 years and five months. Otherwise, the application asserted that the Appellant's personal statement should be considered for its details. It was not provided with the application. The decision letter indicates that the Appellant's representatives had been asked on three occasions by email and once by telephone for a copy of that statement, but to no avail." [7]
3. "There was no evidence before me of any family life" [11]
4. "I am satisfied that the weight which I should attach to the public interest far outweighs that which I can attach to the Appellant's private life in the UK. I therefore conclude that the Respondent's decision is proportionate. There are no exceptional circumstances which would result in unjustifiably harsh consequences and so I dismiss the appeal." [15]

Appeal to the Upper Tribunal

 

6.       The Appellant's grounds for permission to appeal contend that the Judge has erred in law in the following ways:

 

a.       Through failing to properly follow the procedure rules and grant the adjournment application;

b.       Through failing to reasonably assess and provide reasons for rejecting the evidence provided in support of the adjournment application;

c.        Through proceeding to hear the appeal in the Appellant's absence and thereby depriving him of an opportunity to fully present his case.

 

7. In a decision dated 2 ^nd November 2024 First tier Tribunal Judge Mills refused to grant permission to appeal.

 

8. In a decision dated 27 ^th November 2024, Upper Tribunal Judge Hirst granted permission. That permission was not limited.

 

9. At the error of law hearing, Mr Wilford crystallised the position on the Appellant's behalf: put simply, on the facts of this appeal it had been unfair of the Judge not to adjourn the substantive hearing before the First tier Tribunal on 13 ^th August 2024. Specifically, Mr Wilford advanced that the Judge had fallen into error in failing to consider the fundamental questions of fairness from the Appellant's perspective.

 

10. Mr Thompson in response submitted that there was no unfairness occasioned by the decision of the Judge to decline to adjourn the appeal and proceed in the Appellant's absence. Mr Thompson relied upon the reasons given by Judge Mills when permission was refused by the First-tier Tribunal.

 

Discussion

 

11.   The First tier Tribunal conducts appeals in accordance with the Overriding Objective. This provides that:

 

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-”

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues

 

12.   We remind ourselves that, as articulated in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC), " 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."

 

13.   For the reasons that we set out below, we find that it was fair of the Judge in the context of the Appellant's serial non­compliance with directions, and the absence of any proper medical evidence sufficient to explain his failure to attend the hearing, to conclude that that the appeal should not be adjourned and to proceed to hear the appeal in the Appellant's absence.

 

14.   Firstly, as the decision of this Tribunal in Nwaigwe makes clear by the use of the word "if", it is of course open to the First tier Tribunal to refuse an adjournment request: " 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 concerned a fair hearing; failing to apply the correct test; and acting irrationally."[Our emphasis]

 

15.   Secondly, Mr Wilford, rightly, did not submit that an application to adjourn a substantive hearing on grounds of an appellant's ill health resulting in their non-attendance should always be granted on fairness grounds. Such an application requires evidential foundation. In the instant case, Mr Wilford stated that he would struggle to point to any medical evidence before the Judge demonstrating that the Appellant could not attend at the substantive hearing on 13 ^th August 2024. The Judge records that lack of medical evidence at paragraph 3 of the Decision (above).

 

16.   Thirdly, Mr Wilford's complaint that the Judge acted unfairly in failing to consider (i) that the Appellant was to be deprived of presenting his written and oral evidence in his appeal and (ii) the importance of the appeal to the Appellant, must be considered in the context of the Appellant's non-compliance and lack of engagement in the appeal process for 10 months (see the chronology set out at paragraph 3 above). The Judge properly considers this at paragraph 3 of the Decision (above).

 

17.   Fourthly, as Mr Wilford accepted, in considering the question of fairness the Judge was entitled to take account, as he evidently did, of the fact that the Respondent was present at the hearing and ready to proceed.

 

18.   For the reasons that we set out above, the Judge did not fall into error in refusing to adjourn the hearing on 13 ^th August 2024 and in proceeding to determine the appeal in the absence of the Appellant. There was, on the facts of this appeal, no deprivation of the Appellant's right to a fair hearing.

 

Notice of Decision

 

The Decision of the Judge does not involve a material error of law and shall stand

 

 

Roxanne Frantzis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 ^th February 2025