(Immigration and Asylum Chamber) Appeal Number: HU/00928/2017
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 10 January 2019
On 24 January 2019
UPPER TRIBUNAL JUDGE KAMARA
MRS LETICIA TIEKUBEA
(ANONYMITY DIRECTION not made)
For the Appellant: Mr A Kathiva, counsel instructed by Jeff-Leonard Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Plumptre, promulgated on 20 April 2018. Permission to appeal was granted by First-tier Tribunal Judge ID Boyes.
3. On 7 February 2013, the appellant entered the United Kingdom with leave to enter as a student, valid until 30 October 2014. She was granted further leave to remain in the same capacity until 4 April 2016. Prior to her leave to remain expiring, the appellant sought further leave to remain as the partner of a British citizen.
4. The Secretary of State refused the appellant's application on 26 September 2016 primarily on the basis that the relationship was not genuine and subsisting. Furthermore, the respondent considered that the appellant had provided no evidence to show that she would have any problems reintegrating in Ghana. There were said to be no exceptional circumstances.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, the judge noted the absence of witness statements in the appellant's bundle and that the statements served at the hearing did not address the issues raised following the marriage interview. The judge put the matter back in the list for counsel for the appellant to handwrite further statements. Thereafter the appellant and her partner gave evidence. The judge dismissed the appeal, concluding that theirs was a marriage of convenience for a series of reasons, which included some of the inconsistencies highlighted in the refusal letter.
The grounds of appeal
6. The grounds of appeal argued that the judge ought to have adjourned the appeal on the basis that the appellant would not have a fair hearing. The reasons given included serious allegations regarding the appellant's legal representatives. It was said that the appellant was not advised that witnesses were required; that there had been a failure to prepare a "proper" bundle of documents; that there were no witness statements which could stand as evidence-in-chief and owing to these factors the appellant was in no state of mind to give evidence at her hearing.
7. Permission to appeal was granted on the basis sought.
8. The error of law hearing was initially heard on 25 July 2018 in the appellant's absence. That decision was set aside in a decision promulgated on 7 November 2018 because the appellant had not received the notice of hearing.
9. Prior to the hearing, the appellant sought an adjournment for the purpose of awaiting a response to her complaint from her former solicitors, namely Adam Bernard Solicitors. Ultimately, the said firm responded by way of a letter dated 19 December 2018 and the application was not renewed.
10. Mr Duffy had yet to see the response from Adam Bernard and I gave him time to peruse it before inviting submissions.
11. Mr Kathiva relied on the grant of permission of First-tier Tribunal Judge Boyes and referred to the decision in BT (Former solicitors' alleged misconduct) Nepal  UKIAT 00311. He submitted that the appellant received woefully inadequate representation; that the former solicitors appeared to accept that the appellant was not prepared for the hearing; the witness statements did not address the issues and, in any event, were not submitted; photographs and witnesses were available but the appellant was not advised as to their relevance. Mr Kathiva advised me that the current instructing solicitors had been unable to obtain information from counsel who represented the appellant previously because of legal privilege and the back-sheet referred to in Adam Bernards' response to the complaint had not been enclosed. He argued that the judge's assessment of the alleged inconsistencies did not take into account cultural difficulties and had the case been adequately prepared, a different view could have been taken. He reminded me that counsel had had to handwrite the statements at the hearing; the process was materially flawed and that the decision of the First-tier Tribunal should be set aside.
Decision on error of law
"Although we do not rule out that unfairness could be established through the incompetence of the advocate, there is a high threshold to establish. ... there must be demonstrated incompetence such as a course of action that no reasonable advocate would have taken."
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Plumptre.
Signed Date 19 February 2019
Upper Tribunal Judge Kamara