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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005325
	First-tier Tribunal No: PA/01783/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE OWENS

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

 

 

Between

 

KK

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms C Bayati, counsel, instructed by York Solicitors

For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

 

Heard at Field House on 11 February 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

1. We make an anonymity direction because this appeal arises from the appellant's protection claim.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Freer, promulgated on 05/09/2024, which dismissed the Appellant's appeal.

Background

3. The Appellant is a Sri Lankan national of Tamil ethnicity who was born on 09/05/1991. On 14/04/2022 he made an application for international protection on the basis of his political opinion. The respondent refused his application on 10/11/2023.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. On 05/09/2024, First-tier Tribunal Judge Freer ("the Judge") dismissed the appeal on all grounds.

5. The Appellant lodged grounds of appeal, and, on 27 November 2024, Upper Tribunal Judge Hirst granted permission to appeal. She said

 

1. The appellant seeks permission to appeal from the determination of First-tier Tribunal Judge Freer promulgated on 9 September 2024, dismissing his protection appeal.

 

2. The grounds of appeal assert that it was procedurally and substantively unfair for the Judge to determine the appeal in the absence of the Appellant, who was unaware that his previous solicitors had come off the record and believed that the hearing was not effective.

 

3. The grounds are arguable and permission to appeal is granted.

The Hearing

6. For the appellant, Ms Bayati moved the grounds of appeal. Ms Bayati took us to [30] and then to [10], [11] and [12] of the decision, where the Judge acknowledges that the appellant has a history of mental illness. She acknowledged that the Judge discusses the procedural history of the appeal. Ms Bayati then took us to [14] and [15] of the decision. There, the Judge takes guidance from Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC).

7. Ms Bayati conceded that it only became apparent after the Judge's decision that the appellant did not know that his then solicitors had withdrawn from acting. Ms Bayati referred us to the statement prepared by the appellant's current solicitor, which says that his previous solicitors did not tell him that they had withdrawn from acting, and did not tell the appellant to attend the hearing.

8. Ms Bayati emphasised that the appellant was a man who should be treated as a vulnerable witness and argued that it was not sufficient for the Judge to look at the procedural history before proceeding in absence. Ms Bayati argued that the Judge should have made further enquiry and taken account of the appellant's history of mental illness. Ms Bayati said that the failure to adjourn is procedural unfairness. She urged us to set the decision aside and remit this appeal to the First-tier Tribunal.

9. For the respondent, Mrs Arif resisted the appeal. She said that the grounds of appeal amount to nothing more than disagreements with findings made by the Judge. She told us that the Judge was aware of the appellant's vulnerabilities and took us to [14] of the determination, saying that, there, the Judge made allowances for the appellant - but in the absence of explanation could do nothing more than proceed to deal with the appeal on the limited material available to him.

10. Mrs Arif told us that the Judge did everything that was required of him, and that there was no obligation on the Judge to ask why the appellant was neither present not represented. She urged us to dismiss the appeal and to allow the decision to stand.

Analysis

11. The fulcrum in this appeal is [27] of the Judge's decision.

12. Between [14] to [17] of the decision, the Judge takes account of procedural matters and explains his concerns about the appellant's absence. At [15] the Judge correctly turns to Nwaigwe for guidance.

 

13. In Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) it was held that 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. 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 First-tier Tribunal 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?

14. The Judge took account of some frustrating procedural history and rehearses directions which had been ignored. This is not just an appeal with an unsatisfactory procedural history. At the First-tier hearing the appellant was not present and he was not represented because (days before the hearing) his solicitors withdrew from acting. No evidence had been produced for the appellant.

15. The Judge acknowledged that the appellant has a history of mental illness, the most recent record of which disclosed a significant amount of prescribed psychotropic medication and a history of psychosis.

16. After taking guidance from Nwaigwe, the factors that the Judge took account of (listed at [15] of the decision) where only part of the requirements of the overriding objective found in procedure rule 2 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

17. The question the Judge did not ask himself was whether or not proceeding in absence would deprive the appellant of a fair hearing. By failing to address that question the Judge misdirected himself in law.

18. At [33] the Judge recorded that in March/April 2024 the appellant " would have been a vulnerable witness". Throughout the decision it is clear that nothing meaningful had been heard of the appellant since then, yet, at [32], the Judge records

The court regards him as an uncooperative party.

19. The Judge acknowledges that the only information available about the appellant indicates that it is likely that he would be vulnerable, but no consideration is given to either the Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant guidance , or the Practice Direction for the First Tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses.

20. It is at [27] of the decision that the Judge explained why he does not adjourn. The reason he gives for proceeding in the appellant's absence is the procedural history of the appeal. Nwiagwe tell us that that is not enough. The Judge did not consider the question of fairness. He did not consider the appellant's vulnerabilities. Those are material errors of law.

 

21. Because the decision is tainted by a material error of law, we set it aside.

 

22. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal

23. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25 ^th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

24. We have determined that the case should be remitted because the appellant was deprived of a fair hearing. A new fact-finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.

25. We remit the matter to the First-tier Tribunal sitting at Birmingham to be heard before any First-tier Judge other than Judge Freer. A Tamil interpreter will be required.

Decision

The decision of the First-tier Tribunal errs materially in law.

The Judge's decision dated 5 September 2024 is set aside .

The appeal is remitted to the First-tier Tribunal to be determined of new.

 

 

S igned Paul Doyle Date 13 February 2025

Deputy Upper Tribunal Judge Doyle