Case No. UKUT-00655-(IAC)

nfairness; E&R ) Sudan [2014] UKUT 105 (IAC), this Tribunal noted, at [15], that it is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness. This Tribunal further held that the reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred 12. One particular reflection is a pposite. Adjudication by the Upper Tribunal in respect of complaints relating to the conduct of a first instance hearing can be a difficult exercise. Since the FtT is not a c ourt of record no transcript of the hearing is available. Furthermore, disagreement between the parties about the issues under scrutiny can occur . In some cases, as in Alubankudi , a party’s representative makes a witness statement which may be of considerable assistance to the appellate t ribunal. The contemporaneous notes of the parties’ representatives may also be provided in certain cases. In addition, the record of proceedings, compiled by the Judge and maintained on the Tribunal’s file, may provide insight and assistance. Sometimes, as in the present case, the response of the Presiding Judge is also available. Even where some or all of these aids are available, it is impossible to recreate matters such as atmosphere, intonation, facial expression, speed of response et al ; and , fundamentally, the elusive quality of demeanour cannot be reproduced on appeal . The basic handicap is that there is no audio or written record of the words used by representatives, parties, witnesses and the presiding Judge. 13. I highlight also that in cases of this genre first instance advocates have the potential to become witnesses, normally via the provision of a witness statement. As this Tribunal emphasised in BW (Witness Statements by Advocates) Afghanistan [2014] UKUT 00568 (IAC) the roles of advocate and witness are distinct and, thus, in cases where a first instance advocate becomes a witness a different representative must be instructed. Error of Law C onclusion 14. In pronouncing my decision at the conclusion of the hearing, I observed that, on careful analysis, the real issue of substance in this appeal concerned the FtT’s consideration of the medical evidence. A n un sophisticated assessment exposes the fact that part of the medical evidence was disregarded by the Judge. While in his decision he refers to a brief letter from a particular medical practitioner, he makes no mention of a second letter written some two weeks earlier by a different practitioner belonging to the same practice. In this earlier letter the doctor confirms that the Appellant’s spouse: “ … has difficulties with her health due to arthritis and osteoporosis that requires the assistance of a carer ie her husband. She would be greatly affected if he was not present to assist her due to her neck and hand problems especially. ” The Judge makes no mention of this evidence. Furthermore, in his decision he suggests that he had “ little medical evidence ” to support the Appellant’s claim that his wife would be unable to live on her own. This does not withstand analysis, since the report which the Judge did consider, contains the following unambiguous statement: “ She would not be able to cope living in a house on her own. ” These two omissions are of obvious materiality given the Judge’s general ly sceptical attitude regarding the medical issues. 15. Given the above analysis I conclude that the decision of the FtT cannot be sustained. It is infected by a demonstrable failure to consider all the evidence and an associated failure to ensure a fair hearing . The decision is set aside accordingly. The decision re made 16. I have acceded to the Appellant’s application for the admission of further evidence. This consists of a third medical report emanating from the source mentioned above. It contains the following additional evidence relating to the Appellant’s spouse: “ She is currently awaiting gall bladder surgery after an acute admission from A&E on 24/04/15 …. Over the past few years she has had several visits via ambulance to A&E with back pain … chest infection … chest pain … for which she later attended the chest pain clinic …..” The medical practitioner states further: “ She relies on her husband as her main carer with her ongoing health issues and would find it very difficult to manage on her own physically and mentally. ” 17. The two Tribunal appeals in which the Appellant has been engaged have been conducted on the unspoken premise that if the claims about his wife’s health and dependency on him are made good the impugned decision of the Secretary of State will, potentially, be unlawful as constituting a disproportionate interference with the right to respect for the private and family life of the couple. The Appellant’s case falls out with the framework of the Article 8 r é gime of the Immigration Rules. 18. With reference to the obligatory exercise to be conducted under Part 5A of the Nationality, Immigration and Asylum Act 2002: (a) The public interest in the maintenance of effective immigration controls provide s the starting point. (b) The public interest relating to English speaking members of the population is not infringed. (c) The public interest in a population comprising financially independent members is not infringed either. (d) The Appellant’s private life and his relationship with his wife were established long before his advent to the United Kingdom in 2012. (e) While the Appellant’s immigration status has been precarious, his case does not depend upon private life further established by him during the period of uncertainty and, given the couple ’ s ages, this pales into insignificance in any event . Accordingly, the application of Part 5A yields a largely positive outcome for the Appellant. 19. Very properly, it forms no part of the Respondent’s case to challenge the medical evidence which has been assembled. Having no reason to doubt or question this evidence, I accept it. Considered in its totality, it makes a potent case for the Appellant and his spouse under Article 8. I find without hesitation that the Appellant’s spouse is heavily dependent upon him, increasingly so and is of deteriorating health. In contrast with the Judge, I decline to speculate about the availability of assistance from relatives or publicly funded interventions. There is absolutely no evidence relating to either of these measures. Furthermore, it is not in dispute that they have not had to resort to the latter. 20. Given the very particular and highly fact sensitive nature of this case, it is unsurprising that it has no specific prescription within the Article 8 regime in the Immigration Rules. Finally, I weigh in the balance the implicit acceptance on the part of the Respondent that if the Appellant were to return to South Africa , his settlement application would be decided within a period of some three months and, further, would have a positive outcome. This means that the Chikwam ba principle is engaged. 21. The findings, analysis and assessment above impel to the clear conclusion that this is one of those comparatively rare cases out with the framework of the Immigration Rules in which a disproportionate interference with the Article 8 rights of those concerned has been demonstrated. In the balancing exercise, the facts and considerations on the Appellant’s side of the scales combine to outweigh the public interest in play. I remake the decision by allowing the appeal. THE HON. MR JUSTICE MC CLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 20 October 2015