The High Court has refused an application by P.C. to quash a decision deeming his appeal against the refusal of subsidiary protection to be withdrawn. Mr Justice David Keane delivered judgment on 8 March 2017.
The International Protection Appeals Tribunal had scheduled an oral hearing for 17 February 2016. It had told the applicant’s solicitors that the hearing would proceed because the Tribunal considered it was in the interests of justice to hear from him about credibility issues and the possibility of internal relocation within Kosovo. The applicant did not attend. On 25 February, the Tribunal notified him that, under Regulation 9(2) of the European Union (Subsidiary Protection) Regulations 2013, his appeal was deemed withdrawn because he had failed to attend without reasonable cause and had provided no subsequent explanation.
The applicant had asked for his appeal to be decided on the papers. His solicitors said that he had post-traumatic stress disorder and feared that attending and recounting his experiences would increase his anxiety or adversely affect his health. They provided a short GP letter recording the diagnosis. The judge noted that the letter did not address whether the applicant was fit to attend or describe ongoing treatment or prognosis.
The applicant argued that the Tribunal had failed to consider his reasons, give adequate reasons for its decision, or allow his appeal to proceed without him. He also challenged the Tribunal’s interpretation of the regulation’s three-working-day period for an explanation. The respondents disputed those claims.
The judge rejected the challenge. He held that an explanation given before a hearing could amount to reasonable cause for not attending, but that the applicant’s correspondence had not clearly put forward reasonable cause or a reasonable explanation for his non-attendance. The Tribunal had considered his stated concerns before the hearing and explained why it still considered an oral hearing necessary. The applicant had also been warned that non-attendance without reasonable cause could result in withdrawal.
The court held that Regulation 9(2) required the appeal to be deemed withdrawn by operation of law in the circumstances. The Tribunal had not exercised discretion to choose withdrawal over hearing the appeal in the applicant’s absence, and the judge found no basis to require it to proceed without him. He rejected the applicant’s other grounds, including arguments about the Minister’s deportation proposal, the respondents’ pleadings and the timing of their verifying affidavit. The court refused the application; it did not determine the underlying subsidiary protection appeal on its merits.