United Kingdom Asylum and Immigration Tribunal

jh

Heard at Field House

[2003] UKIAT 00099 A (Poland)

On 2 October 2003

IMMIGRATION APPEAL TRIBUNAL

DATE Determination notified: 22.10.03

Before:
Mr J A O'Brien Quinn QC (Chairman) Mr A G Jeevanjee

Between

APPELLANT

and
SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

DETERMINATION AND REASONS
1. The appellant, a citizen of Poland, appeals against the determination of an Adjudicator (Mr R B L Prior) who, in a determination promulgated on 26 February 2003, dismissed her appeal, in her absence, having refused to grant her application for an adjournment on medical grounds, against the decision of the Secretary of State, on 19 September 2002, refusing to grant her application for asylum under paragraph 336 of HC395 (as amended) and giving directions for her removal from the United Kingdom to Poland.
2. The appellant was represented by Mr A Fisher of Counsel, instructed by Anooma & Co, Solicitors, while Ms K Evans, Home Office Presenting Officer, represented the Secretary of State.
3. The grounds of appeal in this matter, firstly, challenge the finding of the Adjudicator on account of his having refused to grant an adjournment to the appellant despite the presence of a medical report to the effect that the appellant was unable to attend the hearing. The grounds of appeal also challenge the determination of the Adjudicator on the ground that his failure to grant the appellant an adjournment affected the outcome of her appeal in material respects and also challenge the findings of the Adjudicator in that while taking account of the decision of the Tribunal in Kweik, he had misunderstood the test of sufficiency of protection as stated in Horvath,in not taking account of Souad Noune, and that the determination was flawed in that he had not taken account of the objective evidence, and had wrongly come to the conclusion that there was sufficiency of protection.
4. Leave to appeal to the Tribunal was granted by the Tribunal (His Honour Judge Huskinson, Vice President) on 9 June 2003.
5. In granting leave to appeal, the Tribunal has stated as follows:

"It is reasonably arguable that the Adjudicator may have erred in failing to grant an adjournment on the basis of the letter from Dr Mark Sarnicki dated 2 February 2003. Bearing in mind however, the contents of this letter, the claimant should be prepared at any hearing to argue why the Adjudicator was mistaken in stating

"I found that the report did not persuade me that the Appellant was sufficiently seriously unwell to be unable to attend the hearing."

In particular, the claimant should be able to argue whether the doctor's report indicates anything more than sickness because of anxiety regarding the forthcoming appeal hearing and (if not) how such sickness is sufficient justification for postponing the appeal hearing."

6. When the appeal opened before the Tribunal on 2 October 2003, the Tribunal had, before it, a bundle of documents submitted on behalf of the appellant, which contained a copy of the doctor's letter in respect of the refused adjournment.
7. We heard Mr Fisher who argued the grounds of appeal and submitted that, in the light of the doctor's letter, in which he had set out clearly that the appellant was unwell and unable to attend the hearing on 7 February and asked that the hearing should be re-scheduled pending stabilisation of the appellant's condition. Mr Fisher submitted that the Adjudicator had not taken full account of what the doctor had stated and the reasons for seeking the adjournment and that he has not given any reasons why he had come to the conclusion that the doctor's report had not persuaded him that the appellant was sufficiently seriously unwell to be unable to attend the hearing. He submitted that the Adjudicator had reached a conclusion, about the medical evidence, which he was not entitled to do, as he has no medical experience. He submitted that the medical report was sufficient evidence upon which to have granted the adjournment and that the Adjudicator had erred in not granting it.
8. Mr Fisher submitted that the Adjudicator had not properly followed the legal procedure as laid down in Rule 31 of the Procedure Rules and that the appeal should be allowed.
9. We then heard Ms Evans, in reply, and she submitted that the Adjudicator properly considered the medical evidence before him, and it is clear from the medical evidence itself that the doctor had not given any detailed reasons why the appellant was unfit and not able to attend the hearing. She submitted that, looking at the reasons given by the Tribunal in granting leave to appeal, the appellant had not argued whether the doctor's report indicated anything more than sickness because of anxiety regarding the forthcoming appeal hearing and had not shown how such sickness was sufficient justification for postponing the appeal hearing. She submitted that, in the circumstances, the Adjudicator had not usurped the function of the doctor, had acted judicially under the Rules, and that his decision ought not be overturned.
10. We then heard Mr Fisher, in reply.
11. The Tribunal then adjourned for a short time in order to consider the submissions made to it.
12. When the Tribunal resumed, we stated, in open court, that we allowed the appeal as, the Tribunal was loath to interfere with a finding of an Adjudicator on a matter such as this, nevertheless, in view of the fact that, in refusing to grant the adjournment, where the Adjudicator had stated that the medical report did not persuade him that the appellant was sufficiently seriously unwell to be unable to attend the hearing, he did not address his mind to the question of whether or not refusing the adjournment would prevent the just disposal of the appeal, as required under Rule 31(1) of the Immigration and Asylum Appeals (Procedure) Rules 2000. We so found, as it would appear to us that, reading the evidence and the grounds of appeal, it would appear that there were a number of points in the evidence, for example, the statement by the appellant that her parents had travelled in and out of Poland, which could have a serious effect on their claim to have been persecuted in Poland, which points the appellant could clear up only in evidence before the Adjudicator. We were of the view that, while the Adjudicator was not persuaded that the appellant was sufficiently seriously unwell to be unable to attend the hearing, he had not considered the question of the just disposal of the case, and further, he did not give any reason why he was not persuaded that the appellant was sufficiently seriously unwell to be unable to attend the hearing, as it would seem from the doctor's report that, not alone did the doctor prescribe appropriate medication for the appellant, but gave instructions for her to be reviewed in two weeks, which two weeks had not expired, before the date of the hearing, on 7 February.
13. In all these circumstances, we found that for the Adjudicator ought to have granted the adjournment applied for and, in open court, in the presence of the representatives and of the appellant, we allowed this appeal, set aside the determination of the Adjudicator and directed that the appeal be heard afresh before an Adjudicator other than Mr R B L Prior, and that the appellant should attend that hearing and present her case without seeking any further adjournments, unless for very good reason indeed.
14. This appeal is, accordingly, allowed, but only to the extent that it is directed that it be heard afresh before a different Adjudicator at as early a date as possible.

J A O'Brien Quinn QC

Chairman