Upper Tribunal (Immigration and asylum chamber), 2021-03-29, HU/10552/2019

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: HU/10552/2019 (V)

THE IMMIGRATION ACTS

Heard at Field House via Skype for Business	Decision & Reasons Promulgated
On 17 March 2021	On 29 March 2021

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

G K P

(ANONYMITY DIRECTION MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DECISION AND REASONS

Representation:

For the Appellant: Mr. J Akhter, Legal Representative, Hudson Legal

For the Respondent: Mr. T Lindsay, Senior Presenting Officer

Introduction

1. This is an appeal against the decision of Judge of the First-tier Tribunal Hoffman (‘the Judge’) sent to the parties on 23 September 2019 dismissing the appellant’s appeal against a decision of the respondent to refuse to grant him leave to remain on human rights (articles 3 and/or 8 ECHR) grounds under, or alternatively, outside the Immigration Rules (‘the Rules’).

2. Paragraph 4 of the grounds of appeal confirms that the appellant solely challenges the decision of the Judge in respect of his article 3 appeal alone. There is no challenge to the Judge’s decision made in respect of the article 8 appeal.

3. By a decision dated 6 July 2020 Upper Tribunal Judge Gill granted the appellant permission to appeal on all grounds, though her primary focus was directed towards ground 1.

4. From the outset I observe that this matter is an example of that fortunately rare creature, an appeal weighed down by the chains of several unfortunate failures by legal representatives. Having been required to consider the matter in detail, it has become apparent that several other failures lie beneath the surface.

5. Legal representatives have been made aware as to my concerns in respect of several failings which arise in this matter. I addressed my concerns with clarity at the hearing. The representatives have accepted responsibility for their failures. I am satisfied each failure by a legal representative was inadvertent rather than negligent, and on their own would not have given rise to the primary ground of appeal now advanced in this matter, namely procedural fairness. It is unfortunate that circumstances conspired to ensure that the combination of several inadvertent failures resulted in the appellant appearing before this Tribunal.

6. An additional concern arising in this matter is the insufficient care given to the drafting of the grounds of appeal that were filed with this Tribunal.

7. It is also appropriate that I detail in this decision my concerns as to the approach adopted by the respondent in respect of her consideration of the initial application for leave to remain.

8. I take this opportunity to thank Mr. Lindsay for his concise and careful submissions, which proved helpful.

Remote hearing

9. The hearing before me was a Skype for Business video conference hearing held during the Covid-19 pandemic. I was present in a hearing room at Field House. The hearing room and the building were open to the public. The hearing and its start time were listed in the cause list. I was addressed by the representatives in exactly the same way as if we were together in the hearing room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.

10. The appellant did not attend the hearing.

11. By directions sent to the parties on 2 December 2020, UTJ Gill directed that Mr. A Rajagopal, Solicitor, G Singh Solicitors, and Mr. S Harding, Counsel, make themselves available to be cross-examined. They attended the hearing remotely, having on 24 September 2020 filed witness statements dated 10 September 2020 and 21 September 2020 respectively.

Anonymity

12. The Judge issued an anonymity direction in this matter, and no request was made by either party before me for the direction to be set aside.

13. In respect of anonymity and tribunals, the requirement that justice should be administered openly and in public is a fundamental tenet of the domestic justice system. It is inextricably linked to freedom of the press and so any direction as to anonymity must be necessary and reasoned: R. (Yalland) v. Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin).

14. The public enjoys a common law right to know about court proceedings and such right is also protected by article 10 ECHR.

15. The Judge failed to indicate within his decision as to whether an anonymity direction had been sought by one or both of the parties before him and the reasons for the request, if made. All that is detailed is the direction itself at the conclusion of the decision, in a section imprecisely entitled ‘anonymity directions’. Upon reading the record of proceedings it is apparent that Mr. Harding sought a direction ‘in light of’ the appellant’s vulnerabilities. The record of proceedings further details that the presenting officer, Ms. Burrell, presented no objections to a direction being granted.

16. It is unfortunate that the Judge decided to provide no reasons as to why relevant article 10 protections were to be set aside in this matter. As observed by the Supreme Court In re Guardian News and Media Ltd and Others [2010] UKSC 1, [2010] 2 A.C. 697 where both articles 8 and 10 of the ECHR are in play, it is for the Tribunal to weigh the competing claims under each article. Since both article 8 and article 10 are qualified rights, the weight to be attached to the respective interests of the parties and family members will depend on the facts. The Judge was therefore obliged to provide reasons as to why article 10 rights were given lesser weight than those given to the appellant’s article 8 rights. Such reasons may permissibly be short, with reference to the relevant Guidance Note, but they are required.

17. I am mindful that considerations arise in this matter as to the appellant’s mental health concerns. I observe Guidance Note 2013, No. 1 which is concerned with anonymity directions and I note that the starting point for consideration of such directions in this chamber of the Upper Tribunal, as in all courts and tribunals, is open justice.

18. Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) contains a power to make an order prohibiting the publication of information relating to the proceedings or of any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.

19. Rule 14(7) of the 2008 Rules contains a presumption that information about mental health cases and the names of the people concerned in such will not be disclosed in the absence of good reason. I am satisfied that in the circumstances which arise to be considered in this matter, and in particular the issue of suicide ideation, the interests of justice require that the appellant is not named in these proceedings. I therefore issue the anonymity direction detailed at the conclusion of this decision.

Background

20. The appellant is a national of India and presently aged 31. He entered the United Kingdom with entry clearance as a student on 9 April 2008 and was granted leave to enter until 31 August 2009. He made subsequent variation applications for leave to remain as a Tier 4 (General) Student, with the last grant of leave expiring consequent to curtailment on 3 April 2015.

21. On two occasions, in 2015 and 2016, the appellant applied for an EEA Residence card. The second application was refused by a decision dated 14 April 2017. I understand that the refusal was on ‘marriage of convenience’ grounds and the appellant withdrew his appeal pending before the First-tier Tribunal in June 2018.

22. The appellant applied for leave to remain on human rights grounds by an application dated 18 December 2018. The application form expressly detailed that he sought leave to remain in this country on private life grounds. This does not preclude an applicant relying upon other relevant articles of the ECHR, but such reliance is to be expressly identified elsewhere in the application.

23. Accompanying the application were various documents including a ‘psychiatry’ report (‘the report’) authored by Dr Mala Singh, MBChB, MSC, MRCPsych, Consultant Psychiatrist, dated 26 November 2018. The report provides no detail as to whether this was the first occasion Dr Singh had met the appellant, and no time is detailed in respect of the length of the...