Upper Tribunal (Immigration and asylum chamber), 2017-06-21, HU/09918/2015
| Jurisdiction | UK Non-devolved |
| Date | 21 June 2017 |
| Published date | 16 August 2017 |
| Hearing Date | 06 June 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/09918/2015 |
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######ØArticle 8 ECHR in a decision promulgated on 11 August 2016
Prior to the hearing, by letter dated 10 August 2016 from her then representatives, Iqbal Law Chambers, the Appellant applied for an adjournment on the basis that her partner had sudden chest pains, was unwell and could not attend court. This letter had attached to it an employee�s statement of sickness, which is a self-certification, and in which Mr Mahmood stated that his period of sickness started on 9 August 2015, although the date on which it ended could either be 10 or 15 August 2015. However, if it is 15 August 2015, it is not clear how Mr Mahmood would have known that the back, chest and shoulder pains he described would end on 15 August, when the letter was faxed on 10 August. The request was refused on the basis that (i) being unable to attend for work was different from not being able to attend a hearing; (ii) the Appellant had failed to submit any documents despite the directions sent out on 30 June 2016; and she had (iii) thereby failed to co-operate with the Tribunal. It was noted in the notification of refusal that the late request to adjourn the hearing was simply an attempt to delay the hearing, which was contrary to the interests of justice
The Appellant attended the first-tier Tribunal without a representative and without Mr Mahmood, her husband. She again applied for an adjournment on the grounds that she wished to seek another representative. This was refused because she had had sufficient time to prepare her case and to seek other representatives, and because her partner had not attended and the only evidence provided as to his non-attendance was a self-certification and no medical evidence
Permission to appeal was granted in the following terms:
�3. The grounds complain that the Judge erred in Law by 1. Refusing to grant her an adjournment to seek legal representation and provide supporting medical evidence in support of her appeal; 2. Failure to properly consider the evidence regarding the risk to the Appellant�s husband in considering the parties circumstances and in particular as to whether there are significant obstacles to the Appellant returning to Pakistan; 3. Failure to have proper regard to the Appellant�s husband�s especial circumstances; 4. Failure to consider the risk to the Appellant if she returns in light of her fear of persecution; 5 Failure to have due/proper regard to the sick certificate in respect of the Appellant�s husband.
4. I have read the decision made by Judge Ghani with care and note that whilst reference was made to the sick certificate submitted in respect of the Appellant�s husband, it was then noted that no medical evidence had been submitted with regard to his condition. This reference was inherently inconsistent.
5. In a very short decision (3 pages), Judge Ghani had made very brief findings (3 paragraphs) with regard to all the issue under appeal. Bearing in mind the nature and complexities of the issues under appeal, especially in light of the fact that the Appellant was unrepresented and had also sought an adjournment to present the evidence. There appears to have been an arguable failure on the part of the Judge to have proper regard to all the evidence and law.
6. It is arguable that the Judge failed to properly undertake an assessment of the particular risk to the Appellant or the Appellant�s husband.
7. The above grounds disclose arguable errors of law�.
For the purposes of the hearing, a large bundle had been submitted on behalf of the Appellant. We made clear to the parties that we would not be considering this evidence for the purposes of the error of law hearing; we could only consider the evidence that was before the Judge.
Mr Salam, on behalf of the Appellant, relied on his skeleton argument. He also submitted that:
The Appellant had not been properly advised; she had trusted her solicitors and they had not asked her for any evidence in support of her appeal, so she had asked for an adjournment to seek new representatives so that she could have a fair hearing. Her solicitors had not submitted a bundle or witness statements. He stated that the Appellant had thought that if she did not have a representative, she would get an adjournment.
The decision was only three pages long. The Judge had considered whether there were insurmountable obstacles to family life continuing in Pakistan, when there was no need to consider the provisions of para EX.1(b) of Appendix FM because it was stated in the decision that the Appellant met the suitability and eligibility requirements and therefore may have qualified for leave as the spouse of a British national, particularly as it was stated in the covering letter that was sent with the Appellant�s application that the Sponsor earned £1,583.33 per month, which equated to £19,000 per annum. Both the Respondent and the Judge had jumped into a consideration of the provisions of EXEX.1(b)ithout ascertaining if it was necessary.
The Judge did not follow AK (Iran) v SSHD [2008] EWCA Civ 94, where it was found that it was an error of law not to grant an adjournment where the representative withdraws at the last minute, and Nwaigwe [2014] UKUT 418 (IAC), which gave primacy to the criterion of fairness. Further, Rule 4(3)(h) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 permits the Judge to adjourn or postpone a hearing.
In view of the guidance in SV (Alleging misconduct and suppressing evidence) Iran [2005] UKAIT 00160 and BT (Former solicitors� alleged misconduct) Nepal [2004] UKIAT 00311, in which it was found that if an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response. Mr Salam was asked if the alleged failures of the Appellant�s solicitors had been put to them, that is, whether they had written to them in relation to the Appellant�s complaints about their conduct. He said that he had not, and that his firm had received instructions from the Appellant after she had received the notice of today�s hearing, which was sometime in May of this year. He confirmed that the Appellant had not instructed them to write a letter of complaint to her former representatives, although she had been upset because she said that she had paid them a lot of money.
On behalf of the Respondent, Mr Mills submitted that:
Allegations against previous solicitors could not be used as an excuse for failing to submit evidence unless the allegations had been put to them and they had either responded or failed to respond. There was no evidence before us of any complaints having been made to the previous solicitors.
The Appellant applied using form FLR(FP), this was not the usual application for an application for leave to remain as the spouse of British national under the 5 year route. It was a private life application outside the Rules. Although it was noted in the covering letter that the Sponsor earned £1,583.33 per month, it may have been that the specified evidence had not been provided. In any event, the Appellant did not come with any documents and it is difficult to see how the Judge could have dealt with the hearing differently.
As to the absence of the Sponsor, the adjournment request had previously been refused. The Appellant�s solicitors had been instructed for several months. They had not confirmed that the Appellant had not had adequate time to prepare for the hearing.
Although the guidance in Nwaigwe focussed on fairness, the provisions of Rule 4(3)(h) of the Procedure Rules, could not be an open door to adjournment requests on demand. It was open to the Judge to refuse the application.
In reply, Mr Salam submitted that the Appellant had been denied representation at the last minute, and reliance was placed on SH (Afghanistan) v SSHD [2011] EWCA Civ 1284. AK (Iran) provided that even if a previous adjournment request had been refused, it was still necessary to grant a request where a previous representative had withdrawn at the last minute. He submitted that the case-law was �on our side�.
It was put to Mr Salam that when the request was made in writing, there was nothing in the representative�s letter of 10 August 2016 to say that they had not had sufficient time to
prepare for the hearing, yet no bundle had been submitted. The only reference was to the health of the Appellant. He was asked if the Appellant had instructed them not to attend so that she could gain more time to prepare. Mr Salam stated that the Appellant had said that she had paid them everything and they had charged her a lot of money. When asked if she had given her former...To continue reading
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