Upper Tribunal (Immigration and asylum chamber), 2023-05-22, EA/00545/2021
| Appeal Number | EA/00545/2021 |
| Hearing Date | 14 March 2023 |
| Date | 22 May 2023 |
| Published date | 07 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Appeal No: EA/00545/2021 |
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: EA/00545/2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 22 May 2023
Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
SAFIUALLAH SHAAN EMAMBUX
(aka SHAUN BUX)
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
THE AIRE CENTRE
Intervenor
Representation:
For the Appellant: In person
For the Respondent: Mr. J Anderson, Counsel, instructed by the Government Legal Department
For the Intervenor: Mr. S Cox, Counsel, instructed by the AIRE Centre.
Heard at Field House on 4 July 2022 and 14 March 2023
DECISION AND REASONS
Introduction
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Both members of the panel have contributed to this Decision.
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The panel observes from the outset that ultimately a judge is in charge of their court or hearing room, and a decision to exclude someone from entering a court or hearing room is a judicial decision.
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The appellant appeals with permission against the decision of Judge of the First-tier Tribunal Rodger dated 18 August 2021. The appellant’s underlying appeal is in respect of a decision by the respondent to refuse to grant him leave to remain under the European Union Settlement Scheme (EUSS).
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At the outset we wish to convey our gratitude to Mr. Anderson and his instructing solicitors, and to Mr. Cox and the AIRE Centre, who acted pro bono as intervenors. The quality of their written work and oral submissions was of the expected high standard.
Exclusion of appellant from hearing room: rule 37(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008
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It is appropriate to provide background to the Tribunal’s decision to exclude the appellant from the hearing room on the second day of hearing.
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The Upper Tribunal is required to deal with cases fairly and justly, ensuring, so far as practicable, that the parties are able to participate fully in the proceedings (see rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008). It is also required to give effect to that principle when exercising its powers under those Rules.
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Rule 37(4) of the 2008 Procedure Rules provides, inter alia, that the Upper Tribunal may give a direction excluding from a hearing, or any part of it, (a) any person whose conduct it considers is disrupting or is likely to disrupt the hearing, and (b) any person whose presence it considers is likely to prevent another person from giving evidence or making submissions freely.
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The First-tier Tribunal enjoys such power by rule 27(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
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All parties to an appeal are entitled to put their case to a court or tribunal in person and in the absence of intimidation or threats. That is axiomatic and underpins the rule of law and the administration of justice. As with open justice, exceptions to that rule must be justified by important principle, most often where the circumstances are such that permitting a person to attend a hearing would put at risk the achievement of justice to other parties. Placing limits on attendance or the mode of attendance is only to be done where a fair hearing cannot otherwise take place. Judicial discretion in making such a limitation is to be exercised with appropriate caution. Any restriction on attendance must be justified and proportionate; any restriction imposed must be no more extensive that is necessary to protect the interests of justice, bearing in mind that applies to all parties.
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A judge is, ultimately, in charge of their court or hearing room, and a decision to exclude someone from entering a court or hearing room is a judicial and fact-specific one.
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A judge is required to retain control of proceedings, to ensure that they remain focussed, effective and efficient. They are required to be vigilant to the risk of disruption. Aggressive, intimidating and threatening conduct may potentially have an adverse impact on the integrity of a hearing and on the ability of others to put forward their case. The safety of participants is important.
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Whilst not an exhaustive list, and with fairness to both parties to be considered, a judge should properly have regard to all the circumstances, including the nature and circumstances of the relevant behaviour, and the extent of the disadvantage to a party if they, or a witness, are not able to present their evidence or oral submissions.
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In many cases, it will be appropriate to give a party a warning that the behaviour is inappropriate before imposing any sanction; that may well not be the case where the conduct in question is sustained, or the warning is unlikely to have any effect, or when giving such a warning would risk further, serious misconduct, undermining a fair hearing.
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If the behaviour arises during a hearing, a judge should additionally consider whether an adjournment would resolve the issue and the likely length of such adjournment.
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By directions issued on 1 March 2023, the panel directed that the second day of hearing would proceed by all parties attending remotely via video link, and that pursuant to rule 37(4) of the 2008 Procedure Rules the appellant was excluded from attending the hearing in person. He did not object to that. Our reasons are detailed below.
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On 16 January 2018, a Circuit Judge granted an injunction against the appellant to his then landlord under section 4 of the Anti-social Behaviour Crime and Policing Act 2014 consequent to anti-social behaviour. The appellant’s actions left a neighbour feeling extremely threatened and frightened. A Circuit Judge subsequently found the appellant to be in contempt of court for breaking the injunction and made a suspended committal order on 6 September 2018. On 10 September 2018, the original injunction was extended. The appellant’s appeal against the suspended committal order and the extension of the injunction was dismissed by the Court of Appeal on 22 November 2019: Emambux v. Innisfree Housing Association Limited [2019] EWCA Civ 2048.
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During proceedings before both the First-tier Tribunal and this Tribunal, the appellant regularly expressed hostility in his written documents and correspondence to a range of identified and unidentified people, many of whom are not involved in this matter. Examples of the latter are identified below.
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In addition to the above, the appellant has been engaged in legal proceedings outside of this Chamber’s jurisdiction, of which we have very little if any knowledge. Having read the documents in this matter, we are satisfied that the appellant holds an animus towards a Circuit Judge and a District Judge involved in those proceedings. In respect of the Circuit Judge, he identifies her as the “Queen of Corruption” in his first skeleton argument filed with the First-tier Tribunal and identifies himself as experiencing “blackmail” from her in his application for ‘an amendment of the Tribunal decision’ filed in an earlier, and successful, human rights appeal before the First-tier Tribunal in 2019. In respect of that human rights appeal, the appellant identifies the Judge of the First-tier Tribunal who allowed his appeal as having blackmailed him.
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Turning to these proceedings, the appellant has made threats towards a Judge of the First-tier Tribunal who for a time was involved in case managing the appeal.
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As to the appellant’s behaviour before this panel, he expressed hostility towards a member of the respondent’s team on several occasions during the hearing on 4 July 2022, as well as being verbally aggressive and presenting in an intimidating manner towards Mr. Anderson. We observe that Mr. Anderson remained courteous throughout.
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In the run-up to the second day of hearing in March 2023, the appellant’s behaviour deteriorated further. In an email to several recipients sent at 13.23 on 14 February 2023, the appellant complained as to the approach adopted by the Upper Tribunal to the filing and service of skeleton arguments, asserting that the Tribunal was exhibiting favouritism to the respondent. A named solicitor of the Government Legal Department was referred to in obscene terms and, along with a named member of the respondent’s team, was said to be “part of child trafficking”. The appellant stated in relation to these two people, “... tell them I have all their information as well, where they live, and where their family is …" We consider this to be a direct threat to those persons identified.
By means of this email, the appellant asserted that he had not secured his biometric residence permit because the panel members “need to cover up” for the respondent. A member of the panel was said to “want to take part in covering up child trafficking”. A threat was made to the panel members that the appellant would demonstrate outside their houses: “all your neighbours will know what you really do who you really are, watch me!!!” The panel...
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