“83. … he is an inveterate liar and manipulator and is therefore not to be trusted in relation to anything he says …”
“Reply 30. – (1) When the other party to the appeal is served with an order for reconsideration, he must file with the Tribunal and serve on the applicant a reply setting out his case if he contends that - (a) there was no error of law in the decision on the appeal; or (b) there was an error of law in the decision on the appeal, but it was not a material error of law. (2) The other party to the appeal must file and serve any reply not later than 5 days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal. (3) In this rule, ‘other party to the appeal’ means the party other than the party on whose application the order for reconsideration was made. Procedure for reconsideration of appeal 31. – (1) Where an order for reconsideration has been made, the Tribunal must reconsider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal. (2) Where the reconsideration is pursuant to an order under section 103A – (a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and (b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. (3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow or dismiss the appeal. (4) In carrying out the reconsideration, the Tribunal – (a) may limit submissions or evidence to one or more specified issues; (b) must have regard to any directions given by the immigration judge or court which ordered the reconsideration; and (c) when making a decision under paragraph (2)(a) – (i) must take into account the section 103A application and any reply; and (ii) may take into account any other matter which it considers relevant. (5) In Rule 30 and this rule, a ‘material error of law’ means an error of law which affected the Tribunal’s decision upon the appeal.”
“The failure to serve a rule 30 response does not mean that the SoS (ECO) has conceded the merits of the grounds; we wish to continue to argue the case. The draft consultation document left a response under rule 30 optional. The change to a mandatory response was opposed on12 May 2008 . The SoS has not had time to alter staff levels/recruit/train staff to facilitate compliance. Those issues are under consideration. As there is no sanction under the Procedure Rules for failure to comply with the amended rule 30 and its imposition is questionable; there is no power in the AIT Procedure Rules to interpret the failure as any form of concession. The Tribunal is invited to apply AIT Procedure Rule 59(1) and extend the time limit for a reply so that the Tribunal can now accept verbal representations on this point. The reason for extending the time limit is that justice would not be served if these representations were refused.”
“Errors of procedure 59. - (1) Where, before the Tribunal has determined an appeal or application, there has been an error of procedure such as a failure to comply with a rule - (a) subject to these Rules, the error does not invalidate any step taken in the proceedings, unless the Tribunal so orders; and (b) the Tribunal may make any order, or take any other step, that it considers appropriate to remedy the error. (2) In particular, any determination made in an appeal or application under these Rules shall be valid notwithstanding that – (a) a hearing did not take place; or (b) the determination was not made or served, within a time period specified in these Rules.”
“Overriding objective 4. The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.”
“(4) Directions of the Tribunal may, in particular - … (c) vary any time limit in these Rules or in directions previously given by the Tribunal for anything to be done by a party (including, where the Tribunal considers that there are exceptional reasons for doing so, extending a time limit which has expired);”
“30(1). When the other party to the appeal is served with an order for reconsideration, he must, if he contends that the Tribunal should uphold the initial determination for reasons different from or additional to those given in the determination, file with the Tribunal and serve on the applicant a reply setting out his case. (2) The other party to the appeal must file and serve any reply not later than five days before the earliest date appointed for any hearing of or in relation to the reconsideration of the appeal. (3) In this Rule, “other party to the appeal” means the party other than the party on whose application the order for reconsideration was made.”
“(4) Directions of the Tribunal may in particular - …. (c) vary any time limit in these Rules or in directions previously given by the Tribunal for anything to be done by a party.”
“24. On the face of it this might appear to permit consideration of the late reply in this case. However, we are of the view that a careful reading of rule 45(4)(c) indicates a prospective rather than a retrospective variation, in the light of the words “anything to be done by a party.”
“25. The appellant requested an adjournment on the basis that no pre-sentencing report had been provided pursuant to the directions that the respondent should provide the same and hence there was no assessment as to the appellant’s risk to the community. It was furthermore said that the appellant’s son’s medical condition was a relevant factor and there was no evidence relating to whether there were facilities in the DRC suitable for his condition. There was also a question mark as to the reference to the appellant being seemingly on bail for rape during the judge’s sentencing remarks which needed to be clarified. 26. The respondent accepted that there was no evidence of any rape charge being pursued whatever the position may have been at one stage and we indicated that we would ignore any reference to any possible rape offence. The respondent furthermore stated that the absence of a pre-sentence report did not in itself warrant an adjournment and the same applied to the lack of evidence in relation to medical facilities in the DRC. 27. We refused the adjournment. We consider that all the matters that might have been covered in the documents that were said to be required could be dealt with by the appellant and his witnesses in evidence and in any event we were entitled to consider the objective evidence in relation to the DRC on the Country Information Report. We were of the view that the case could proceed without injustice to the appellant.”
“38. He gave further evidence-in-chief. He explained how he was an enhanced prisoner and was appointed a “listener” namely someone who listens to other inmates. He was in full-time education in prison and a part-time listener. He said that the probation service provided a written assessment which was that he was at a low risk of re-offending. He explained he had a copy of the assessment in his bag which he did not have with him because he had left it at Harmondsworth.”
“I assess the risk of harm to the public as low as although PA has a previous conviction for Robbery, this offence was committed over ten years ago. He poses a medium risk of harm to other road users. In view of the fact that PA has several previous convictions for different offences, I assess there is a medium risk of him committing offences of a similar or different nature.”
“90. What however must be now considered is the extent to which the fact that the parties have a son with a certain medical condition is a relevant factor. We accept that the son does have a problem with his heart which has necessitated an early operation and may need an operation when he is aged 5. However he has no restrictions in his way of life and despite being monitored on a three monthly basis his life continues as normal. There is no reason to think that apart from his heart condition he could not adapt at his young age to living in the country of his parent’s origin even though his way of life will be different from that he would enjoy should he remain living with his mother in state accommodation and living at the state’s expense. 91. We are of the view that the son’s medical condition is not sufficient to prevent the appellant’s removal. We accept that paragraph 28 of the Country Information Report in its 74 sub-paragraphs shows that medical facilities are far from ideal with life expectancy being 42 years for men and 47 for women according to the 2003 figures. We also accept that there are a wealth of diseases suffered by all members of the community, in particular children. We note that there are a number of international organisations seeking to assist in medical programmes including vaccination programmes for children. However it is not clear whether the son would have the same regular opportunity for being checked for his heart condition in the same manner that he does in this country and that it may not be as easy to arrange for any operation that might become necessary in due course. 92. However it must be commented that much of the medical concentration is upon the major diseases such as cholera, malaria and HIV and AIDS. In paragraph 28.36 it refers to the 2001 Swiss Report reporting how “a wide range of medical treatment is available in Kinshasa. There are few diseases (even chronic ones) or operations that cannot be dealt with in the country as long as the patient has the financial means.”