Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00268/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 December 2016
On 16 January 2017

Before

DEPUTY JUDGE G A BLACK OF THE UPPER TRIBUNAL

Between

J C D
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Briddock, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant in respect of a Decision and Reasons before the First-tier Tribunal (Judge McIntosh) ("FTT") and promulgated on 13 October 2016 in which the FTT dismissed the appellant's appeal against a refusal of asylum. The grounds of appeal are lengthy and detailed and I do not propose to repeat them save that it is argued that the FTT failed to make findings on whether his detention and torture would place him at risk on return.
2. Permission was granted by First-tier Tribunal Judge Parkes on 11 November 2016. Judge Parkes stated:
"It is clear from the decision that the judge found that whilst the appellant may have been detained it was not for the length of time he claimed and that he had not been ill-treated as he claimed. The judge rightly observed that there were reasons to doubt the appellant's claim but he did not address the scarring report of Dr Cohen explicitly. It is arguable that that is an error although following further analysis it may be that it takes the case no further, the other grounds may be argued but have considerably less merit."
3. This morning I have heard submissions from both representatives, which I have taken into account. The FTT essentially found that the appellant was lacking in credibility based on findings as to his ability to leave Sri Lanka, to apply for a visa and the delay in making his claim. The FTT then went on to consider the material aspects of his claim and found that "he may have been detained for a period but this was not for the duration as reported without the degree of ill-treatment reported by the appellant.[50]"
4. I am satisfied that it was open to the FTT to reach findings that certain aspects of the account were credible and others not credible. The final assessment must involve consideration of the evidence in the round having regard also to the background material and to any expert evidence that was relied on by either party, and to make appropriate findings and give reasons in support of what weight is attached to evidence.
5. I am in agreement with Mr Briddock's submissions that in this instance the FTT failed to make assessments as to credibility based on a consideration of all of the evidence in the round. There was a wealth of evidence including expert and medical evidence from the H. Bamber Foundation before the First-tier Tribunal that should have informed the FTT's findings of fact as to material matters or for reasons to be given for rejecting the same. For those reasons I am satisfied that the grounds for permission argued are sustainable and that there is an error in law.
6. I have gone on to consider the question of materiality in light of the country guidance case of GJ (post civil war returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and MP (Sri Lanka) v SSHD EWCA 2014 Civ 829. Given the appellant's claim in the main relates to the historical account of ill-treatment, materiality is relevant. I am just persuaded that the error of law which involves a failure to make concrete findings as to the nature of the detention, are material to an assessment of risk in the future.

Notice of Decision
There is an error of law and the decision is set aside.
The matter is remitted to the First-tier Tribunal (excluding Judge McIntosh) at Taylor house for a hearing afresh on a date and time to be notified.
Anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 13.1.2017

Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award.

Signed Date 13.1.2017

Deputy Upper Tribunal Judge G A Black