Anita Dammarpal Thapa v Entry Clearance Officer, New Delhi
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane,President |
| Judgment Date | 16 January 2018 |
| Neutral Citation | [2018] UKUT 54 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 January 2018 |
[2018] UKUT 00054 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE McWilliam
For the Appellants: Mr S Ali, Solicitor, Everest Law Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer
Thapa & Ors (costs: general principles; s 9 review)
(1) What emerges from the guidance in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) is that the power to award costs in rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised with significant restraint and that detailed examinations of other decided cases are unlikely to assist in deciding whether to award costs under either of those rules.
(2) Section 9 of the Tribunals, Courts and Enforcement Act 2007, read with the relevant procedure rules, enables the First-tier Tribunal to review, set aside and re-decide a case where, on the materials available to the judge deciding an application for permission to appeal, an error of law has occurred and (as in the present case) a party has thereby been deprived of a fair hearing. In the present case, such a course would have avoided the need for the matter to come before the Upper Tribunal and have resulted in a more expeditious outcome.
On 19 December 2017, the Upper Tribunal heard the appellants' application for an order under rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 that the respondent be required to pay the appellants the sum of £2,332, representing the costs said to have been incurred by the appellants as a result of the respondent having unreasonably defended the appellate proceedings in the Upper Tribunal.
The appellants appealed against the decisions of the respondent on 30 September 2015 to refuse them entry clearance to the United Kingdom as adult dependent relatives of their father, who was an ex-Gurkha soldier. The appellants' appeals were heard in the First-tier Tribunal on 25 January 2017 by First-tier Tribunal Judge Majid. Mr M Chowdhury, Presenting Officer, attended on behalf of the respondent. The appellants were not represented.
It is now common ground that Counsel for the appellants had been taken ill the night before the hearing and had informed his instructing solicitors that he would be unable to attend that hearing. The sponsor father of the appellants had also been taken ill, with the result that he too could not attend.
It is also now common ground that a fax had been sent to the First-tier Tribunal's administration on the morning of the hearing, confirming Counsel's illness and seeking an adjournment. A further fax in this regard had also been sent, in addition to which instructing solicitors telephoned the Tribunal before the scheduled start of the hearing.
It is finally common ground that, regrettably, Judge Majid was not informed of the adjournment request or of the indisposition of Counsel and the sponsor. The judge proceeded with the hearing.
In a written decision promulgated on 30 January 2017, the judge held as follows:-
“2. I have dismissed this appeal due to lack of interest.
3. Fairness required by the overriding objective does not demand that this case should be left unresolved. Therefore in the interest of expeditious and just disposal of cases I deal with this appeal without any further delay under Paragraph 28 (sic) of the Tribunal Procedure (First-tier Tribunal) Immigration and Asylum rules 2014, SI2604 (as amended) (sic).
4. Adhering to the usual practice the Presenting Officer requested me to draw the appropriate inference from the omission of the Appellant (sic) to arrange any representative to attend the hearing.
5. Without cogent rebutting evidence on various significant issues nobody can expect this appeal to succeed.
6. Accordingly, bearing in mind that the burden of proof is on the Appellant, I find that the Respondent's decision to be sound in law and it stands.
NOTICE OF DECISION
Appeal Dismissed.”
The appellants applied to the First-tier Tribunal for permission to appeal the decision of Judge Majid. Paragraph 3 of the grounds stated that the appellants' solicitors had faxed and telephoned the Tribunal, as described above. The grounds noted that the judge did not appear to have been aware of the application to adjourn.
Ground 1 was, accordingly, that the judge “arguably proceeded on a mistaken view of the facts (that there was no interest in the case by the appellants, and no application to adjourn)”. The case of E & R v Secretary of State for the Home Department [2004] EWCA Civ 49 was relied upon in this regard. The judge's mistake of fact as to the reasons why there was no representation of the appellants at the hearing was submitted to amount to an error of law.
Ground 2 contended that the judge failed, in any event, to determine the grounds of appeal against the respondent's decision. That decision was said to constitute the refusal of the appellants' human rights claims, by reference to Article 8 of the ECHR. A bundle of evidence was before the judge, running to 86 pages, which included witness statements “going to emotional ties” between the appellants and the sponsor, as well as “money transfer receipts going to financial support”.
Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal on 20 June 2017. The judge who granted permission stated as follows:-
“2. Counsel for the Appellants was taken ill the night before the hearing. The Sponsor was also separately taken ill and could not attend the hearing. The grounds set out that the Appellants' solicitor sought an adjournment on the morning of the hearing by fax at 9.27am. Counsel's indisposition was also confirmed by his clerk by way of a fax sent to the Tribunal administration at 9.17am. The Appellant's (sic) solicitors further telephoned the Tribunal administration at 9.30am, 11.30am and 16.30pm that day. From the Decision & Reasons it would appear that the Judge was not made aware that an application to adjourn the case had been made when he decided that “ I have dismissed this appeal due to lack of interest”. It is an arguable error of law that had the Appellants' Representative been available to conduct the hearing and the Sponsor been available to give oral evidence then it may have made a material difference to the outcome or to the fairness of the proceedings.”
On 3 July 2017, the respondent filed with the Upper Tribunal a response to the grounds of appeal, pursuant to rule 24 of the 2008 rules. The substantive provisions of the response read as follows:-
“2. The respondent opposes the appellant's appeal. In summary the respondent will submit inter alia that the Judge of the First-tier Tribunal directed himself appropriately.
3. If it was the case as asserted in the grounds, that an application to adjourne (sic) was made but not passed to the judge to consider, then this could well be a procedural error amounting to an error of law. Unfortunatly (sic) the permission is unclear as to whether the Tribunal can confirm that the adjournment request was made as asserted. In the absence of that confirmation the Secretary of State must reserve her position on the point.
4. The respondent requests an oral hearing.”
It is now accepted by the appellants that, in composing the response, the respondent had seen only the appellants' grounds of application for permission to appeal against the decision of the First-tier Tribunal Judge. The First-tier Tribunal had, however, been sent not only the application for permission to appeal, with the attendant grounds, but also a witness statement of Mr Syed Ali, of the appellants' solicitors, dated 1 February 2017, detailing the attempts that had been made to secure an adjournment on the basis of the ill-health of Counsel and the sponsor. There were also a number of attendance notes of Everest Law, made on 25 January 2017, concerning Mr Ali's actions; a fax transmission report showing that a letter from Everest Solicitors was sent to the First-tier Tribunal on 25 January 2017, regarding the illness of Counsel, with the consequent application to adjourn; and a letter from a doctor in Brecon Group Medical Practice, dated 26 January 2017, regarding the sponsor's indisposition.
The appellants' appeals to the Upper Tribunal were heard by Upper Tribunal Judge Southern on 25 October 2017. Mr Jesurum, of Counsel, attended on behalf of the appellants. Mr Jesurum had been the Counsel due to attend before Judge Majid.
At paragraph 2 of his decision, Upper Tribunal Judge Southern noted that, unknown to Judge Majid “because it appears that nobody had told him”, the First-tier Tribunal had received a number of communications regarding the non-attendance of Counsel, and that:-
“3. It seems clear that none of this was communicated to Judge Majid. That is sufficient to establish that there has been procedural unfairness such as to amount to an error of law and for that reason alone, as was readily, and properly, conceded by Ms Ahmad, [the respondent's Presenting Officer] the decision of the judge cannot stand.”
Upper Tribunal Judge Southern also found as follows:-
“4. Although Judge Majid cannot be held responsible for the fact that he was not informed of the reasons for counsel's absence, I accept Mr Jesurum's submission that it was, in any event, an error of law for the judge to fail to engage with the material...
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