RK v The Secretary of State for the Home Department

1. Neither party has objected to the findings and proposed course of action proposed in the grant of permission of 4 July 2011, which were as follows.

2. There is a clear error in the approach of the Immigration Judge, at the hearing of the appellant’s asylum appeal, regarding the involvement at that hearing of Mr Chowdhury. Rule 48(1) of the 2005 Procedure Rules provides that an appellant “may ... be represented by any person not prohibited from representing him by section 84 of the Immigration and Asylum Act 1999 ”. Since there is no suggestion that Mr Chowdhury, a family friend, in seeking to represent the appellant, was acting in the course of a business, whether or not for profit, he was not prohibited by section 84 from representing the appellant (see section 82(2)). The Immigration Judge thus had no right to restrict Mr Chowdhury’s involvement to that of a Mackenzie Friend on the basis that he “was not legally qualified” (paragraph 11 of the determination); in particular, by preventing him from making direct submissions to the Tribunal.

3. I am satisfied from the grounds that this error materially affected the presentation of the appellant’s case, including her own ability to give evidence. As a result, the appellant was deprived of a fair hearing and I have decided, compatibly with the Practice Statements of February 2010, that the determination should be set aside and the appeal remitted to the First-tier Tribunal. DIRECTIONS

1. That Tribunal is hereby directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal de novo at a hearing before an Immigration Judge, other than Immigration Judge Pycott.

2. The parties are hereby directed pursuant to that section to serve all documentary material on which it is intended to rely (including witness statements) not later than 7 days before the forthcoming hearing. Signed Upper Tribunal Judge P R Lane Immigration and Asylum Chamber