Upper Tribunal (Immigration and asylum chamber), 2019-04-26, OA/16542/2013

JurisdictionUK Non-devolved
Date26 April 2019
Published date26 June 2019
Hearing Date02 April 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberOA/16542/2013

Appeal Number: OA/16542/2013


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/16542/2013



THE IMMIGRATION ACTS



Heard at Field House

Decision and Reasons Promulgated

On Tuesday 2nd April 2019

On Friday 26th April 2019




Before


MRS JUSTICE JEFFORD

(SITTING AS AN UPPER TRIBUNAL JUDGE)

UPPER TRIBUNAL JUDGE SMITH



Between


OR

[Anonymity direction made]

(A protected party: by his litigation friend KWS)

Appellant

And


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Ms S Harrison QC and Mr A Vaughan, Counsel instructed by Bindmans LLP

For the Respondent: Mr J Anderson, Counsel instructed by Government Legal Department



Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008

This appeal involves a protected person and also concerns the welfare of a child. An anonymity direction has been made by the Upper Tribunal previously and it is appropriate to continue that anonymity direction. We make clear that our reasons for that direction do not include the impact on the Appellant’s own reputation of the crimes which he has committed. Until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.



DECISION AND REASONS

INTRODUCTION

  1. This appeal comes before us for re-making of the decision in relation to Article 8 ECHR, an error of law having been found by this Tribunal (Mrs Justice Elisabeth Laing DBE and Upper Tribunal Judge Jordan) by a decision dated as long ago as 5 December 2014 (“the Decision”). It comes before us by a slightly unusual route. By the Decision, the Tribunal accepted that there was an error of law in the decision of the First-tier Tribunal Judge, promulgated on 9 July 2014, allowing the Appellant’s appeal. The First-tier Tribunal’s decision was therefore set aside although the factual findings therein were not disturbed by the grounds of challenge. The Tribunal went on to re-make the decision in relation to Article 3 ECHR, dismissing the Appellant’s appeal in that regard but reserving to a resumed hearing the appeal on Article 8 grounds.

  2. The Appellant has since appealed the Decision on the Article 3 grounds to the Court of Appeal. Permission to appeal was granted on that application by Lord Justice Hickinbottom on 26 November 2018. He gave directions on that occasion to permit the Appellant to amend his grounds to deal with an issue relating to the applicability of the case of Paposhvili v Belgium [2017] Imm AR 867 to the facts of this case. Following that amendment and a hearing on 28 February 2019, Lord Justice Hickinbottom stayed the Respondent’s application to set aside the grant of permission and indicated that this Tribunal would hear and determine the outstanding Article 8 grounds by a resumed hearing, prior to the substantive hearing in the Court of Appeal on 24-25 June 2019. The Court of Appeal has also indicated that, in the event that either party is dissatisfied with our decision which follows, an application for permission to appeal will be considered by the Court on a rolled-up basis during that hearing.

  3. As we understand the position, therefore, we are to determine only the Article 8 ground of appeal. We do so on the basis that the Decision which is under appeal remains intact and we gratefully adopt such parts of the Decision which are relevant to our consideration below.

PROCEDURAL MATTERS

LITIGATION FRIEND

  1. An application has been made on behalf of the Appellant for the appointment of a litigation friend in this appeal. The proposed litigation friend is his sister who is a British citizen living in the UK. We have anonymised her identity here, and in the heading, in order to preserve the Appellant’s anonymity.

  2. A Presidential panel of this Tribunal has recently provided guidance in relation to the appointment of litigation friends (R oao JS and Others) v Secretary of State for the Home Department (litigation friend – child) 2019 UKUT 00064 (IAC). Although that guidance is in the context of the capacity of minor children in judicial review proceedings, the decision makes clear that it applies equally to the statutory appeal context ([72]) although the costs and procedural regimes are different. It is also of assistance for what it has to say about the assistance to be derived from the Civil Procedure Rules although those do not strictly apply to the Tribunal ([77]). For that reason, we adopted a similar approach when determining the application in this case. In particular, CPR 21.4(3)(a) and (b) provides that the litigation friend must be able to fairly and competently conduct proceedings and have no interest adverse to the Appellant.

  3. We heard oral evidence from the Appellant’s sister, KWS. She has been appointed by the Court of Protection since June 2015 to handle the Appellant’s financial affairs in the UK. She confirmed that she remains willing to act on his behalf in relation to these proceedings. She confirmed that she understands her responsibility in relation to the making of decisions in relation to conduct of the proceedings and that she is content to assume responsibility. We also confirmed that she has no interest adverse to that of the Appellant. We were also satisfied on the medical evidence provided by Dr Sewell (to which we refer below) that the Appellant lacks the capacity to conduct these proceedings himself and that the appointment of a litigation friend is necessary.

  4. The Respondent did not object to the appointment. We therefore appointed KWS as the Appellant’s litigation friend in this appeal. We note that as this is a statutory appeal and the Appellant is in any event a publicly funded party (in which regard KWS is also his litigation friend), no costs consequences arise.

APPLICATION TO ADDUCE FURTHER EVIDENCE

  1. The Appellant applied to adduce updated witness and medical evidence to which we will refer below. The Respondent did not object to that application. The Respondent also made an application to adduce further evidence. The basis of the application is set out at [3] to [5] of the Respondent’s skeleton argument. Those paragraphs read as follows:

3. The Defendant applies to rely on further evidence. First the Defendant applies to rely on evidence from Tascor as to the circumstances of the Claimant’s removal. As explained below, it is denied that the Claimant was mistreated during the process of his removal. The evidence is plainly material in demonstrating that. For the avoidance of doubt, the Defendant does not consider that the alleged mistreatment is relevant to the determination of this appeal in any event.

4. Second, the Defendant applies to rely on excerpts from the GCID records which also relate to the circumstances of removal, and for the same reasons as above.

5 Third, the Defendant applies to rely on a response to a country information request dated 21 March 2009 in respect of the Open Arms Centre.”

  1. Ms Harrison objected to the adducing of the evidence, save for the third item referred to. She submitted that the other material was not relevant as indeed appeared to be the Respondent’s position. As Mr Anderson pointed out, however, the material went to an argument made at [11] of the Appellant’s skeleton argument concerning procedural fairness obligations under Article 8. It was to that argument that the material was directed even though the Respondent’s primary position was that it was not relevant.

  2. Ms Harrison also pointed out that the material went further. In particular, the GCID notes appeared to be the entirety of those notes relating to the Appellant. That objection appears to be founded on the inclusion of details of other offences in which the Appellant has been suspected of involvement but have led to no convictions. We observe that the Respondent’s decision letters do include reference to the generality of those matters, but we were not provided with any evidence about them and Mr Anderson made clear that this was not the reason for seeking to adduce the further evidence. Accordingly, we disregard that evidence entirely when considering the...

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