Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00507/2016

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 7th February 2017 On the 11th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MISS K.T.
(Anonymity Direction made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms J Bond (Counsel)
For the Respondent: Mr P Nath (Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Rhys-Davies dated the 8th October 2016, in which he dismissed the Appellant’s appeal against the Respondent’s decision to refuse her international protection as a stateless Tibetan, who claimed to be formerly resident in India.
2. Permission to appeal was initially refused by First-tier Tribunal Judge Grant-Hutchinson on the 14th November 2016, but the Appellant renewed her application for permission to appeal to the Upper Tribunal and permission to appeal was granted by Upper Tribunal Judge Grubb on the 3rd January 2017 on the basis primarily as to whether or not the Judge had correctly applied the relevant law, in that the case relied upon by the First-tier Tribunal Judge which was central to the appeal and which appeared to have been reported at the time of the hearing, was said by Judge Grubb to mysteriously be no longer on the UTIAC website as a reported decision. He said that may be relevant to the appeal and the applicable law and that he also then granted permission on credibility since that issue may also be affected by the application of that case.
3. Since that date, the Respondent has filed a Rule 24 reply dated the 19th January 2017, in which it is argued that the First-tier Tribunal Judge directed himself appropriately. It was said that the Respondent was hampered by not being able to obtain a copy of the case relied upon by the Judge, but it was said that the key issue regarding the Appellant’s credibility was the delay in claiming asylum and that it is argued that it was open to the Judge to conclude that the delaying in claiming asylum damaged the Appellant’s credibility and that while from a previous reported case it appeared that Tibetans were often assisted in obtained false documentation, that did not mean that it happened in every case and that the Judge was entitled to find, it is argued, that the Indian documentation presented by the Appellant was genuine and properly issued. It is further argued that the First-tier Tribunal initially rejected the permission to appeal application on the basis that it was out of time which had not been addressed by the Upper Tribunal grant of permission.
4. It was on that basis that the case came before me in the Upper Tribunal. Given that the grant of permission by Upper Tribunal Judge Grubb did not refer to the question as to whether or not the application for permission to appeal was out of time, and given that is a prerequisite to the Tribunal having jurisdiction to consider the substantive appeal, I dealt with that issue at the appeal hearing, having heard submissions from both legal representatives in that regard. Ms Bond of Counsel told me that she was renewing the application to extend time and argued that the decision of the First-tier Tribunal Judge was actually promulgated on the 17th October 2016, given the date of the official stamp on the decision that her solicitors had been sent, and that it was received by her solicitors on the 19th October 2016, and that her Instructing Solicitor genuinely and reasonably believed that time ran from the day after the decision was received on the 20th October 2016. This she said was where there had not been an original request to extend time, as her solicitor believed it was in time. She submitted that there were special circumstances as to why time should be extended, if the Upper Tribunal found that the application was not made within time, given the genuine and reasonable belief of her solicitor that it was in time, and that the Appellant should not be punished for any errors on the part of her solicitor, in an asylum case where the question as to whether or not a person needed international protection, was at stake.
5. Mr Nath on behalf of the Respondent simply said that the matter had been raised by First-tier Tribunal Judge Grant-Hutchinson, and that although it had been relied upon within the Rule 24 Notice, he did not wish to say anything more in respect of the same.
6. Having heard those submissions, I decided that the application for permission to appeal in this case was made one day late, but that it was in the interests of justice to admit the application, even though late. Pursuant to Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, an application for permission to appeal to the Upper Tribunal in an in country asylum claim must be provided to the Tribunal so that it is received no later than the 14 days after the date on which the party making the application was provided with written reasons for the decision. The 14 day period therefore started to run from the date when it was received by the Appellant’s solicitors on the 19th October, not the day after, on the 20th October. However, in this regard, I do accept that the error was purely on the part of the solicitor, who I accept did genuinely and honestly believe that the time did run from the day after, and that it was therefore not a fault on the part of the Appellant herself, and that she should not be blamed for the fault of her solicitor in that regard. I further find that there are special circumstances in this case which mean that it is in the interests of justice to admit the application, out of time, given that it is only by a period of 1 day, given the reasons for that delay, given the error on the part of the solicitors, and given the important nature of the appeal, in that it is to determine the Appellant’s appeal in respect of her application for international protection on asylum grounds.
7. I therefore continued to hear submissions from the 2 legal representatives in respect of the substantive issues in the appeal itself. The full submissions made are contained within the records of proceedings, and are therefore not repeated in their entirety here, but I will refer to the relevant parts, in giving my judgment.
8. When granting permission to appeal, Upper Tribunal Judge Grubb did not limit the grant of permission to only certain of the grounds which were argued, but in respect of the issue that he raised as to whether or not the case relied upon by the First-tier Tribunal Judge regarding the Interaction of Directives and Rules, which had been reported at [2016] UKUT 00374 (IAC) and which was sent to appeal no longer seemed to him to be on the UTIAC website as a reported decision, having delved further into this matter myself, it appears that the decision in the case was withdrawn from the UTIAC website on the 23rd December 2016, but had since been republished on the 30th January 2017, with the only alteration being that whereas the decision was published originally without any anonymity, it was withdrawn following the Appellant’s solicitors in that case indicating that anonymity had been granted, and has been since republished as a reported decision under the title TG (Interaction of Directives and Rules) [2016] UKUT 374 on the 30th January 2017. There is therefore nothing mysterious, in respect of it being withdrawn from the website, it was simply withdrawn in order that it could be re-promulgated with the appropriate anonymity having been given as previously ordered.
9. Although criticism was made by Ms Bond of the purported failure of the First-tier Tribunal Judge to take account of the expert evidence given in the case of TG that Tibetan organisations in India will assist Chinese-born Tibetans to obtain documents on a fraudulent basis by stating that they were born in India, which expert evidence was accepted by the Upper Tribunal at paragraph 34 in the case of TG, as I pointed out to Ms Bond, although TG is a reported decision in respect of the principle that “The interpretation of paragraph 334 of the Immigration Rules is subject to the Qualification Directive and the Procedures Directive”, it was not itself a Country Guidance case, and therefore no Country Guidance based upon that expert evidence was given, and that therefore the First-tier Tribunal Judge was entitled to take into account the fact that the same expert was not present before him at [33] of the judgment.
10. However, the Judge also went on when rejecting that expert evidence, to find that “I so find not simply because the same expert evidence is not before me, but because in ‘TG’ the expert evidence was accepted as part of an overall positive credibility finding.”. The fact that Tibetan organisations in India will assist Chinese-born Tibetans to obtain documents on a fraudulent basis by stating they were born in Indian is not in itself diminished by a consideration as to whether or not this Appellant Miss K.T., herself was credible, but clearly, the First-tier Judge was entitled to consider her credibility against the background of the evidence given to the Upper Tribunal in TG that Tibetan organisations in India will assist Chinese-born Tibetans to obtain documents on a fraudulent basis by stating that they were born in India. Whether or not the First-tier Tribunal Judge accepted the Appellant’s evidence when assessed against that background was a matter for the First-tier Tribunal Judge.
11. However, when considering whether or not the Appellant had taken all reasonable and practical steps to pursue enquiries with the Indian High Commission, in respect of issuing her with a new Identity Certificate, the Learned First-tier Tribunal Judge at [34] of his decision stated that “The Appellant had made no personal visits and her correspondence is limited to the few brief emails copied in the Appellant’s bundle at pages 6-9”. In respect of this Ms Bond argued that the Judge had failed to take account of the oral evidence given by the Appellant herself, which Ms Bond had witnessed, as she represented the Appellant at the First-tier Tribunal, that the Appellant had attended at the High Commission, just a day before the appeal hearing. She argued that in such circumstances, the Judge’s statement that the Appellant had not made any visits, without any consideration of the evidence by her in that regard, meant the Judge had failed to take account of relevant material evidence when reaching his finding that the Appellant had not taken all reasonable and practical steps to pursue her application for a new Identity Certificate with the Indian High Commission.
12. As argued by Ms Bond who represented the Appellant in the First-tier Tribunal, having checked the learned First-tier Tribunal Judge’s record of proceedings, the Appellant is recorded as having stated that she went to the Indian High Commission ‘yesterday’ ie the day before the appeal hearing before Judge Rhys-Davies and it is recorded that she was told that they could not renew her Identity Card in the UK. I therefore do accept that such evidence was in fact given by the Appellant, and was not considered by the First-tier Tribunal Judge when making his decision, and I therefore do find that the Judge has failed to take account of relevant evidence in that regard. This I do find is a material error of law, in that it cannot be said that the result would necessarily be the same had that error not been made.
13. Further, as conceded by Mr Nath on behalf of the Respondent, the Learned First-tier Tribunal Judge has failed to engage with the argument raised by the Appellant as to whether or not she would readmitted into India, her Identity Certificate having expired and the evidence relied upon at the First-tier Tribunal from the Canada Immigration and Refugee Board which was referred to within the Respondent’s original refusal letter which discussed the issue of returns of Indian-born Tibetans and which was evidence to the effect that Identity Certificates could not be renewed from abroad and that Tibetans must return to India to renew their Identity Certificates before they expire, but that there were exceptions for diplomats and university students who can instead apply to renew their Identity Certificates at Indian Missions abroad. Further it was said in that background evidence as noted by the Secretary of the BDL that it was ‘difficult’ for a Tibetan individual if their Identity Certificate had expired while abroad.

14. Although the Appellant had been a student, she was no longer a student as at the date of the hearing before First-tier Tribunal Judge Rhys-Davies. I do find in that regard that the First-tier Tribunal Judge’s findings simply at [35] that “Having found the Appellant’s current claim as to her origin lacks credibility, and also that there is positive evidence from the Respondent the Appellant was born and lived in India legally, I conclude that the Appellant was born in India as she claimed when making her application for entry clearance and that she resided there legally prior to travelling to the United Kingdom. I find that the Respondent has proved to the balance of probability that the Appellant would in such circumstances be readmitted to India” does not deal with the argument as to whether or not, even though on the Judge’s findings, not born in Tibet, but having been born in India, the Appellant (whom the Respondent accepted was “of Tibetan origin”) would be able to return to India in safety, if her Identity Certificate had expired whilst abroad. The failure to deal with this relevant issie also amounts to a material error of law.
15. I do not consider that it could be stated the decision of the First-tier Tribunal Judge would necessarily have been the same, had these errors not been made, and in such circumstances, I do consider that the errors made are material errors of law. In such circumstances, as was agreed by both legal representatives if the decision did contain material errors of law, which I find that it does, the decision of First-tier Tribunal Judge Rhys-Davies should be set aside in its entirety, and the case remitted back to the First-tier Tribunal for rehearing de novo, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Rhys-Davies.

Notice of Decision
The decision of First-tier Tribunal Judge Rhys-Davies does contain material errors of law and is set aside.
The appeal is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Rhys-Davies.
The Appellant was granted anonymity before the First-tier Tribunal, and it is appropriate for such anonymity to be continued. 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
R.F. McGinty
Deputy Upper Tribunal Judge McGinty Dated 7th February 2017