Upper Tribunal (Immigration and asylum chamber), 2024-01-29, [2024] UKUT 00028 (IAC) (Maleci (Non-admission of late evidence))
| Judge | The Hon. Mr Justice Dove, President, Mr C.M.G. Ockelton, Vice President, Upper Tribunal Judge Blum |
| Status | Reported |
| Date | 29 January 2024 |
| Published date | 30 January 2024 |
| Hearing Date | 23 June 2023 |
| Appeal Number | [2024] UKUT 00028 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Non-admission of late evidence |
UT Neutral Citation Number: [2024] UKUT 00028 (IAC)
Maleci (Non-admission of late evidence)
UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Heard at Field House
THE IMMIGRATION ACTS
Heard on 23 June 2023
Promulgated on 29 January 2024
Before
THE HON. MR JUSTICE DOVE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE BLUM
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
COL MALECI
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr D Clarke, Senior Presenting Officer
For the Respondent: Mr C Timpson, counsel
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The First-tier Tribunal is empowered to issue directions regulating the filing and service of evidence in proceedings which provide sanctions in the event of non-compliance that lead to the exclusion of evidence if the Tribunal considers this to be ‘just’. Parties must appreciate that if they fail to comply with directions, they run the risk that the Tribunal will refuse to consider evidence that is not provided in accordance with those directions.
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What is ‘just’ will depend on the particular circumstances of each case but will be informed by the principles set out in SSHD v SS (Congo) and Others [2015] EWCA Civ 387.
DECISION AND REASONS
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The respondent entered the United Kingdom in 1997 claiming to be from Kosovo. He gave his date of birth as 21 May 1978. He was recognised as a refugee and granted Indefinite Leave to Remain (ILR) on 28 June 1999. In an application for naturalisation made in 2004 the respondent confirmed his date of birth and his place of birth as Kosovo. He was naturalised as a British citizen on 16 February 2005.
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The appellant does not accept the respondent is from Kosovo or that he is the age claimed. On 26 October 2021 the appellant gave notice under s.40(5) of the British Nationality Act 1981 (the 1981 Act) of her decision to make an order depriving the respondent of his citizenship status as she was satisfied it had been obtained by fraud, false representation, or concealment of a material fact (pursuant to s.40(3) of the 1981 Act).
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The decision was supported by an undated letter issued by the British Embassy, Tirana (the Embassy letter). The Embassy letter asserted that checks conducted in accordance with a Memorandum of Understanding between the UK and Albania found that no national was registered on the National Civil Register of Kosovo with the details provided by the respondent (his name and date and place of birth). The checks did however reveal that someone with the same name, but whose date of birth was ‘21 May 1973’, was included on the Albanian National Civil Register. The Embassy letter also contained a photograph from an Albanian government database that matched a photograph of the respondent held on Home Office records.
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Pursuant to s.40A of the 1981 Act the respondent appealed the decision of 26 October 2021 to the First-tier Tribunal.
Directions issued by the First-tier Tribunal
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On 7 February 2022, following a request for disclosure by the respondent’s legal representative, a First-tier Tribunal caseworker directed the appellant to ‘submit’ several documents upon which the assertions in the Embassy letter were said to be based. These documents were to be provided by 21 February 2022. They included, inter-alia, correspondence between the British Embassy and the relevant departments in the Albanian government and the Kosovan government, the official Albanian Family Certificate in respect of a person with the same name as the respondent and documentary evidence of the results produced following the checks that had been made. These directions stated that if the appellant was unable to comply she had to provide the First-tier Tribunal with reasons and/or make an application for more time. The appellant did not challenge these directions.
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An extension of time application was made on 21 February 2022 as the appellant needed further time to “collate multiple documents which are not available electronically.” Despite time being extended by a further 2 weeks, the appellant failed to provide the documents by 7 March 2022. No explanation was provided for this failure and no further application was made to extend time.
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Further directions in the same terms were issued by Assistant Resident Judge Frantzis on 14 April 2022. The directions commenced:
Direction 1. By 5 PM 21 April 2022, the [Appellant] must submit the following documents:-
…
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The directions concluded with a sanction for failure to comply:
2. In failing to do so, the [Appellant] will not be permitted to relying on these documents or any assertions made in relation to these documents.
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The appellant did not challenge these directions. The appellant failed to comply with these directions. No explanation was offered for the failure. No application to extend time was made.
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On 4 June 2022 a Legal Officer issued the following direction:
The [Appellant] has failed to comply with directions dated 14 April 2022.
In accordance with the directions of Judge Frantzis, the [Appellant] will not be permitted to rely on the documents or any assertions made in relation to those documents which have not been submitted.
The [Respondent’s] Legal Representative must now submit the Skeleton Argument and [Respondent’s] bundle within 14 days.
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The appellant did not challenge this direction or apply for this direction to be amended or set aside.
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In a witness statement dated 27 May 2022 the respondent noted the appellant’s failure to comply with the First-tier Tribunal’s directions to provide the evidence supporting the British Embassy letter.
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On 25 August 2022 the appellant uploaded onto CCD (the First-tier Tribunal’s case management system) several documents that had been the subject of the earlier directions. The uploading of the documentation was not accompanied by an explanation for their lateness, or by any application to extend time to facilitate their admission, or by an application seeking relief from the sanction applied in the decision of 4 June 2022.
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On 21 September 2022 the First-tier Tribunal listed the substantive hearing before Judge of the First-tier Tribunal Jepson (the judge).
The decision of the First-tier Tribunal
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At the substantive hearing on 5 December 2022 the respondent was represented by Mr Timpson, and the appellant by Mr Royle, Presenting Officer. The judge was invited to make a preliminary decision as to whether the appellant could rely upon the late evidence produced on 25 August 2022. The judge considered the parties competing submissions, including the appellant’s submission that although the documentary evidence was late it had been available to the respondent since August 2022, and that the documentary evidence had not taken the respondent by surprise as it was specifically requested by him. The appellant also submitted that the purpose of the earlier directions was to ensure that the evidence was before the Tribunal, and this had been achieved.
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The judge decided as follows:
23.) I ruled that the evidence set out in direction seven be excluded. Judge Frantzis had made a clear direction. That set out the consequences if the direction were not met. After the first extension, no attempt was made by the Respondent to ask for more time or set out any difficulty encountered. There was ample opportunity to do so. Although it is right that directions of the Tribunal are frequently not met, they are not optional. The parties have a duty to keep the Tribunal apprised as to problems. The Respondent failed to fulfil that. Nor was this a ‘near miss’ situation. The evidence was four months late.
24.) My other concern was that, in effect, the Respondent was asking me to go behind or even overrule the directions of another judge of the First-Tier Tribunal. That would, in my judgment, be entirely inappropriate. No suggestion been made that the direction given was unlawful. The Respondent did not seek to challenge it. There was, in my view, no new information before the Tribunal which might have allowed the direction to be reconsidered in some way.”
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Following the preliminary decision the Presenting Officer, in the judge’s words, “… sought to withdraw the decision via rule 17 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014”. This was with a view to remaking the decision incorporating the evidence that the judge excluded. The judge was “urged” by Mr Timpson to refuse the application on the basis that no good reason existed to allow the withdrawal.
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The judge decided to refuse to allow the appellant to withdraw. The judge reasoned as follows:
“29.) Allowing withdrawal would in my judgment simply reward failure. All of the factors considered when deciding to exclude the late evidence were also taken into account here. The reality was, were withdrawal permitted the [Appellant] would re-issue the decision in the same terms as before. However, she would then no doubt serve the evidence I have excluded here. Arguably, nothing could...
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