DA007982014

Factual and Procedural Background

The Appellant, a national of Somalia, arrived in the United Kingdom in 1999 and initially claimed asylum unsuccessfully. He was later granted exceptional leave to remain for four years, followed by indefinite leave to remain in 2005. The Appellant claimed membership of the Bajuni clan, a minority group in Kismayo, Somalia, and argued that removal from the UK would expose him to risks from Al-Shabab and violate Articles 2 and 3 of the Human Rights Convention, as well as his private and family life established in the UK.

The First-tier Tribunal panel dismissed the Appellant's appeal, finding no credible risk to him in Somalia and no exceptional circumstances to outweigh the public interest in deportation under section 32(5) of the UK Borders Act 2007. The family life claim had ended by the time of the hearing, and the panel rejected the claimed clan membership and risk assertions.

The Appellant challenged the panel's refusal to grant an adjournment to obtain an expert report on his ethnicity, arguing procedural unfairness due to the panel considering factors not put to him. The Appellant had a criminal conviction from 2013 and was served with a deportation notice in March 2013, with the decision applying section 32(5) made in April 2014.

Legal aid funding issues delayed the instruction of an expert report. The Appellant's solicitors requested an adjournment to confirm legal aid eligibility, instruct an expert, and prepare the case. Despite confirmation of legal aid eligibility in late June 2014 and requests for further adjournment, the panel refused, citing the Appellant's lengthy time to gather evidence and the absence of an expert report at the hearing.

The Upper Tribunal granted permission to appeal on the basis that the expert report could have affected the core finding regarding the Appellant's ethnicity. The matter was remitted to the First-tier Tribunal to be reconsidered by a differently constituted panel.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in refusing an adjournment to allow the Appellant to obtain an expert report on his claimed ethnicity.
2. Whether procedural unfairness occurred by the panel considering factors related to ethnicity that were not put to the Appellant.
3. Whether the refusal to grant an adjournment and the resulting absence of expert evidence prejudiced the Appellant's right to a fair hearing.

Arguments of the Parties

Appellant's Arguments

• The Appellant's claimed ethnicity was central to the appeal and disputed by the Respondent.
• An expert report was necessary to assist the Tribunal in determining the ethnicity issue.
• Procedural unfairness arose because the panel considered factors about ethnicity not put to the Appellant.
• The refusal to grant an adjournment prejudiced the Appellant's case and right to a fair hearing.
• The appropriate remedy was to remit the case for reconsideration by the First-tier Tribunal.

Respondent's Arguments

• The Appellant had ample time to obtain evidence regarding his claimed ethnicity.
• The refusal to grant a late adjournment did not prevent the just disposal of the appeal.
• At the time of the hearing, there was no expert report instructed due to lack of confirmed funding.
• The Appellant's criminal history and prior asylum refusal undermined the credibility of his claims.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC)	Principle that procedural unfairness can result in a case being remitted.	Referenced in argument to support the claim that the Appellant was deprived of a fair hearing due to refusal of adjournment.

Court's Reasoning and Analysis

The court acknowledged that the refusal to grant an adjournment for an expert report constituted an error of law. It noted that the Appellant's claimed ethnicity was a central issue that the expert report could have materially affected. The panel's reliance on the Appellant’s criminal history and prior asylum refusal was deemed irrelevant to the protection issue at stake. The court accepted the concession by the Respondent’s counsel that procedural unfairness had occurred. The court also expressed concern that the panel had adopted earlier reasons for refusal without adequately considering the relevance of the expert evidence or the procedural fairness implications. Consequently, the decision of the First-tier Tribunal was set aside, and the matter was remitted for reconsideration before a differently constituted tribunal.

Holding and Implications

The appeal is allowed in part, the decision of the First-tier Tribunal is set aside, and the matter is remitted for reconsideration before a differently constituted Tribunal.

The direct effect of this decision is to afford the Appellant a fair hearing with the opportunity to present expert evidence on his ethnicity, which is central to his protection claim. No new legal precedent was established; the ruling primarily corrects procedural unfairness in this specific case.