Upper Tribunal (Immigration and asylum chamber), 2024-02-01, UI-2022-004419 & UI-2022-004421
| Appeal Number | UI-2022-004419 & UI-2022-004421 |
| Hearing Date | 24 January 2024 |
| Date | 01 February 2024 |
| Published date | 16 February 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2022-004419
UI-2022-004421
First-tier Tribunal Numbers: EA/13568/2021
EA/13570/2021
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2022-004419 UI-2022-004421 |
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First-tier Tribunal Nos: EA/13568/2021 EA/13570/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 1st of February 2024
Before
UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE METZER KC
Between
MAJID ALI CHOUDHARY (1)
MARIYA TABASSAUM CHOUDHARY (2)
(NO ANONYMITY ORDER MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: The appellants did not attend and were not represented
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
Heard at Field House on 24th January 2024
DECISION AND REASONS
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These written reasons reflect the oral decision which we have given at the end of the hearing.
Background
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We begin by explaining the context in which there is no attendance by the appellants and the nature of the witness evidence that we heard from Mr Khalid Mahmood. The fuller background is set out in our previous orders and directions dated 10th August 2023 and subsequently on 23rd October 2023, both of which were issued following adjourned hearings. At the first adjourned hearing, Mr Mahmood had attended as a representative via CVP in Pakistan, but the hearing had to be adjourned because of a difficulty with internet connections, which Mr Mahmood indicated was not uncommon. It subsequently transpired that Mr Mahmood wished to give witness evidence. As a consequence, we wrote to the appellants in or around 10 October 2023 in the following terms:
“[Mr Mahmood] is based in Pakistan, as are the appellants, although they have a sponsoring relative, understood to be in the UK. Noting Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), the error of law hearing has been listed a hearing at Field House, at which Mr Mahmood can give evidence (he has a company address registered in London, of which he is a director and there is no suggestion that he cannot enter the UK to attend the hearing). As per 5(iv) of BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC), a legal representative should, as a general rule, not present the appeal before the Upper Tribunal, as an advocate must never assume the role of witness. Mr Mahmood relies on Paragraph 6.3 of Presidential Guidance Note 2012. No.3, for unrepresented claimants, contained in a section, “Sponsor as representative,” for the proposition that the Tribunal Procedure Rules do not prevent individuals from acting both as representative and as a witness in the same appeal, so long as that person is not in the business of providing immigration services.
Taking each point in turn, Mr Mahmood is not the sponsor, the importance of which was stressed in HH (Sponsor as representative) Serbia [2006] UKAIT 00063. The sponsor is a Mr Muhammad Nawaz, said to be exercising treaty rights in the UK, whom the appellants wish to join.
We bear in mind that a family friend may seek, other than in the course of business, to represent a party (see RK (entitlement to represent: s. 84) Bangladesh [2011] UKUT 409 (IAC). Mr Mahmood is clearly providing immigration services and advice. The documents produced by him include detailed, specific legal representations on behalf of the appellants (so “immigration services”, for the purposes of section 82(1) of the Immigration and Asylum Act 1999). They also refer to him attending on and “appraising” one of the appellants of a relevant statutory provision in connection with their application for entry clearance (so “immigration advice’” for the purpose of section 82(1) of the 1999 Act). We do not accept that he is not doing so other than in a course of business, whether for profit or not (see: section 82(2)(b) of the 1999 Act). In the appellants’ application for permission to appeal (‘IAUT-1’) , Mr Mahmood is described as the appellants’ representative, of Convergent Management Consultants Ltd, and uses company letter-headed notepaper in his capacity as “director.” He has also applied to this Tribunal on 16th March 2023 for costs totalling some £20,545, signed by him in his capacity as director, with items broken down in a way similar to time costs for discrete elements of work, for example “issue/statements of case - £4,345” and “witness statements - £1,560”. While section 84 of the 1999 Act would not prevent him from providing otherwise regulated immigration advice or services from outside the UK, Mr Mahmood seeks to do so at a hearing in the UK and he does not suggest that he is registered. Even if he were so registered, Mr Mahmood’s reliance on HK (Interviewer as advocate: unfair?) Ethiopia [2006] UKAIT 00081 is misplaced. As that case makes clear, where a professional representative is a witness, it may be inappropriate for them to conduct the advocacy. That is echoed in BW. We reiterate that it remains open to the appellants to ask the sponsor or other family members in the UK to make representations, while Mr Mahmood attends to give evidence. I do not, however, permit him to conduct advocacy at the hearing.
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At the second adjourned hearing on 23rd October 2023, the appellants instructed Loxford Solicitors who, in turn, instructed Mr J Gazzain of Counsel. Mr Mahmood was present to give evidence. It was at that hearing that the appellants’ application for wasted costs was withdrawn and we also confirmed that at the time as Loxford Solicitors had been instructed, it was not appropriate for either this Tribunal or the respondent to be required or communicate directly with Mr Mahmood. However, Mr Gazzain had to apply for an adjournment because he had not received all of the relevant documents and was unable to answer a question, originally posed by Upper Tribunal Judge Reeds when she had granted permission on 5th January 2023, of what evidence had been filed or had been before the First-tier Tribunal Judge, Judge Groom (the ‘Judge’).
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Following on from the second adjourned hearing on 23rd October 2023, Loxford Solicitors then ceased to act, and it was at that stage that the Tribunal administration began liaising directly with the appellants themselves. We received correspondence from the appellants directly on 15th January 2024, indicating that Mr Gazzain was no longer available, they could not afford to instruct another barrister, and in particular, blaming Loxford Solicitors for not providing Mr Gazzain with material for the hearing. The appellants said that they relied upon the wisdom and judgment of this panel as unrepresented appellants. They had submitted honest applications with supporting documents at all times, although they had learned from Mr Mahmood of discrepancies not disclosed to them prior to his involvement. We observe that these appear to relate to earlier visa applications which need not trouble us.
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We recite this background first, to explain Mr Mahmood’s attendance as a witness, and second, our decision to proceed with the hearing in the appellants’ absence. There was no application to adjourn the hearing again and it was clear that the appellants wished to proceed. In the absence of the appellants’ attendance, we remind ourselves that at this stage, we are only considering whether the Judge erred in law, and Mr Mahmood’s evidence is only relevant to the extent that it relates to that question. It is not for us to question him unless it is necessary to decide that issue.
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Mr Mevin objected to Mr Mahmood’s witness statement, on the basis that almost all of it contained legal submissions, thereby attempting to circumvent our refusal of a right of audience. It also contained a number of comments in relation to the evidence before the Judge, as well as reiterating the wasted costs application, which was previously withdrawn.
We decided as a preliminary issue that it was appropriate to admit Mr Mahmood’s witness statement, but with clear limitations. We accept Mr Melvin’s submission that much of the witness statement contains legal submissions. It is not appropriate, where we have clearly set out that we are not willing to grant a right of audience to Mr Mahmood, for us to place any weight on these particular aspects of his witness statement. Similarly, the witness statement provides a duplicative commentary on what Mr Mahmood says are self-proven documents. He seeks to comment on the reliability or authenticity of documents. In this second regard, we also place no weight on those comments, particularly where first, Mr Mahmood does not purport to be an expert in the authenticity of particular documents, and second (and more importantly) he is clearly not an independent witness, even if he were expert, because as he confirms at §12 of his statement, the first appellant is a personal family friend. Our only reason to consider the statement was a limited part of which describes an earlier part of the litigation history, as it progressed, up to §25 of the statement, which we have found of assistance. For the avoidance of doubt, to explain clearly for the appellants’ benefit, the admission...
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