(Immigration and Asylum Chamber) Appeal Numbers: HU/13444/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 12 th July 2019
On 25 th July 2019
UPPER TRIBUNAL JUDGE FRANCES
A A T
(anonymity direction MADE)
For the Appellants: Mr Adewale, instructed by Dynamic Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The Appellants appeal against the decision of First-tier Tribunal Judge Eldridge dismissing their appeal against the refusal of leave to remain as a Tier 4 Migrant and dependant on Article 8 grounds.
2. Permission to appeal was granted by Upper Tribunal Judge Gill on 10 June 2019 for the following reasons:
"According to paragraph 14 of the grounds lodged in support of the application to the First-tier Tribunal for permission to appeal, the Respondent emailed the ETS bundle on 15 th January 2019, i.e. just five working days before the hearing on 23 rd January 2019 before Judge of the First-tier Tribunal Eldridge. It is at least arguable that the late submission of the bundle by the Respondent may have led to unfairness in that the first Appellant arguably did not have sufficient time to deal with the Respondent's bundle.
It is therefore at least arguable that the judge's refusal to adjourn the hearing has led to the Appellants having been denied a fair hearing.
All the grounds may be argued".
3. Mr Adewale submitted that the failure to adjourn had resulted in unfairness because the judge had not given the Appellant an opportunity to respond to the serious allegation of submitting a false English language certificate and, given that the Respondent's witnesses had been criticised in SM and Qadir, the judge's reliance on the evidence of Mr Gopal at paragraph 35 amounted to an error of law. The evidence before the First-tier Tribunal was not sufficient to discharge the legal burden on the Respondent without giving the Appellant an opportunity to offer an innocent explanation.
4. Mr Adewale referred to a letter from the Respondent dated 14 February 2014 stating that the Appellant should seek to take another test. The Appellant had done so and passed the test but this subsequent test had not been taken into account. The judge had failed to consider this in his decision.
5. Mr Adewale relied on JO (Nigeria)  UKUT 517 (IAC) and submitted that, even though the second Appellant was under 7 years old, it was still necessary to look at the circumstances and whether it would be reasonable for her to return with the first Appellant, who would be a single mother returning to India. Paragraphs 44 and 45 of the judge's decision were an inadequate assessment of the duty under Section 55 of the UK Borders Act 2007. Although the second Appellant was 4 years old at the time of the hearing, she had lived in the UK all her life and did not speak any other language. It would be difficult for her to integrate on return to India. The judge failed to consider the child's circumstances in detail and failed to properly apply Section 55. Further, because of the refusal to adjourn, there was no statement from the Appellant. The judge's refusal of an adjournment was unfair because it denied her an opportunity of putting forward her Article 8 claim. There was medical evidence before the judge to explain why the Appellant had not attended the hearing. She was suffering from anxiety and depression and was a victim of domestic violence. In all the circumstances, it would be disproportionate to return her to India.
6. Mr Jarvis submitted the GP records were the only medical evidence before the First-tier Tribunal Judge and the refusal of an adjournment was not procedurally unfair. There was no challenge to Article 8 in the renewed grounds to the Upper Tribunal and permission was not granted on that basis. The letter from the Respondent of 14 February 2014 was not relevant. It was during that month that the Panorama documentary came out and the fraudulent use of ETS certificates was discovered.
7. In relation to the adjournment, Mr Jarvis submitted that the Appellant had decided not to attend the appeal hearing and was relying on an adjournment being granted. She did not attend the hearing even when the adjournment was refused the previous day by the Duty Judge. There was no obligation on a judge to grant an adjournment just because an Appellant did not attend the appeal. This Appellant had known that the adjournment had been refused and was therefore on notice. It was submitted before the First-tier Tribunal that the Appellant was unable to give a statement at any time in the past. Mr Jarvis submitted there would have to be evidence that she was not medically able to produce a witness statement. The GP records submitted in the Appellant's bundle were insufficient to show that was the case. It was clear from paragraph 16 of the decision that the Appellant had seven months to provide a statement and had failed to do so.
8. The Appellant was not taken by surprise by the failure to serve the ETS bundle until five days before the hearing because she was well aware from the refusal letter what the issues were. The Appellant had an unrealistic expectation of the amount of time given in order to prepare for a hearing. It was clear that the Respondent was not able to give any further evidence and the Appellant stated it was not her on the audio recording.
9. Mr Jarvis submitted that at the hearing before the First-tier Tribunal there was no request for an adjournment on the basis that the Appellant was unable to attend as a result of medical issues. The recent witness statement prepared for this appeal did not engage with the Appellant's non-attendance before the First-tier Tribunal. At paragraph 24 it stated:
"I have (sic) suffering undue mental distress, depression, stress, panic attack and anxiety for over five years. I am also suffering heart palpitation anxiety. My career and life aspiration have been destroyed. My family life was frustrated and broken."
Although there was a record of depression, there was insufficient evidence to show that the Appellant was unfit to attend court.
10. The judge gave a detailed consideration to the Appellant's claim notwithstanding her non-appearance. He concluded that it would not be unreasonable for the parties to return to India. The judge decided the case as best he could on the evidence before him. There was no error of law.
11. Mr Adewale submitted that the Appellant was not there to challenge the allegation of fraud or to give an explanation and therefore there was a problem of unfairness. The Appellant was unable to submit full and detailed evidence because she was suffering from anxiety, stress and depression and was unable to attend the hearing. Because she had been accused of fraud it was incumbent on the judge to do everything possible to allow her to attend. It was inappropriate to proceed without giving the Appellant a chance to explain.
Judge's relevant findings
12. The judge made the following findings with respect to the adjournment:
"16. I informed the parties I was not willing to adjourn and said I would give detailed reasons in my decision notice which I now do. The Appellant was aware of the decision to refuse the basis for the refusal on or shortly after 8 th June 2018, a period of more than seven months. It is plain however that she was actually aware of the underlying problem concerning her English language test certificate from at least 14 th February 2014, see page 12 of her bundle. Although Mr Mussa said that he wished to contact the solicitors for ETS again he had also informed me that they said they could give no further information. I was of the opinion that this was an appeal in which the Appellant had not engaged with her solicitors. That extended to failing even to make a witness statement despite the long period available to her to do so.
17. The question of the Appellant's ill health was not pursued in the application before me but I did consider it. I agreed with the decision of the Duty Judge on the previous day. Whilst the medical evidence provided disclosed that the Appellant has a history of anxiety and depression since she was a teenager and is treated with medication, which has recently been increased, this is a first line intervention. The notes produced from the Appellant's GP did not state that she was unfit to attend but merely that she had reported that she felt so.
18. I had regard to the provisions of Rule 2 of the Tribunal Procedure Rules 2014 and the issues of fairness. In my view an adjournment would serve no purpose. The Appellant had not engaged with the reasons for the refusal of her application, there was no prospect of any further information being forthcoming from ETS and she was represented at the hearing before me. If it was correct that she was unfit to attend the hearing, which I did not accept, there was no indication of when she might be able to do so or when she would give a statement to her solicitors. I was of the opinion the appeal could be fairly and justly determined on the basis of the evidence before me and by submissions on behalf of the parties. I had regard to the general undesirability of delay and the scarce resources of both the Tribunal and the Respondent.
19. After I announced my decision on the question of the adjournment to another date, I readily acceded to the request by Mr Mussa that this appeal be taken at the end of my list. I so adjourned and resumed the hearing approximately one and three quarter hours later. He informed me that the Appellant continued to be on antidepressant medication, her daughter was at school and she would not be attending with the hearing.
13. In relation to the ETS the judge concluded:
"37. The Appellant has known of the problems she faces concerning this English language test certificate for many years and the precise reasons for refusing her most recent application since early June 2018. In the intervening seven months she has not provided a witness statement and she has not attended the hearing before me to give evidence. She seeks to rely upon the test taken on 9 th August 2014 and marked as being passed some eleven days later. I do not find that this is relevant to the question of whether some sixteen or seventeen months earlier she used a proxy to take the test year undertook at Queensway College.
38. On the evidence available to me I conclude that the first Appellant has not discharged the burden upon her to provide an innocent explanation for taking of the test by another person. The Appellant was entitled to refuse the first Appellant on suitability grounds."
14. The judge then went on to consider Article 8 and stated:
"44. It was put on her behalf that India is a male dominated country and that she would suffer greatly because of this and that her life would be ruined if she had to return. I do not accept that. On the face of it she is a person who has shown herself over time to be adaptable. Having lived for more than three quarters of her life in India she may be presumed fully to understand the culture and to retain good language skills. Nothing has been put for me that I have seen that she would have any more significant difficulty than any other no single mother returning to live in India. She has not chosen to give any evidence concerning her family circumstances in India.
45. The best interests of her young daughter are to remain with her mother. It is not suggested that her father plays any part in her life wherever he may be. The relatively recent decision of the Supreme Court in KO Nigeria v The Secretary of State for the Home Department  UKSC 53 sets out that regard must be had to the realities of life. The first Appellant the mother has no right to be within the United Kingdom and has sought to remain here by deception. She must return. It is entirely reasonable to expect her young daughter to accompany her and to live in the country of her nationality and heritage. At the age of 4 there is good reason to believe that she will adjust well to life in India although it will be different in some respects to the life she has begun to enjoy in this country."
Conclusions and reasons
15. I find that the refusal of an adjournment was not unfair. The judge considered whether the Appellant had been unable to properly prepare for the hearing, because of the late service of the bundle, and concluded that was not material to the lack of preparation. It was apparent that the Appellant had failed to engage with her solicitors. She knew by June 2018 at the latest that there was a problem with her English language test and yet she failed to provide a statement for the appeal hearing and put forward an innocent explanation. The late service of the bundle did not give rise to any unfairness because the Appellant had ample opportunity to prepare. The Appellant received the ETS bundle on 15 January 2019 and there was no dispute that the Appellant's voice was not that on the voice recording.
16. There was no statement from the Appellant and there was insufficient medical evidence to show that she was unfit to attend the hearing. It was clear from the adjournment request refused by the Duty Judge on 22 January 2019 that the Appellant's inability to attend was not a reason to grant an adjournment. She was well aware that her attendance at the hearing was necessary. I am not satisfied that the refusal of the adjournment has caused unfairness in this case.
17. In any event, this is a human rights appeal and, even if the judge had found in the Appellant's favour in relation to the ETS point such that the Respondent was not entitled to refuse the application on suitability grounds, the fact remains that the Appellant could not satisfy the other requirements of the Immigration Rules. She could not succeed as a partner or as a parent. The second Appellant was four years old and was not a qualifying child. The judge considered her best interests and his conclusions at 44 and 45 were open to him on the evidence before him. He properly applied KO Nigeria. The best interests of the second Appellant were to remain with her mother and return to India. Taking the Appellants' claim at its highest, this appeal could not succeed on Article 8 grounds on its facts. There was nothing before me in the Appellant's further evidence, served at the start of this hearing, that could possibly lead to a different conclusion.
18. The refusal of the adjournment was not arguably unfair and there was no material error of law in the judge's decision promulgated on 18 February 2019. Accordingly, I dismiss the Appellant's appeal.
Notice of decision
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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.
Signed Date: 22 July 2019
Upper Tribunal Judge Frances
TO THE RESPONDENT
I have dismissed the appeal and therefore there can be no fee award.
Signed Date: 22 July 2019
Upper Tribunal Judge Frances