Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01282/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 24 January 2017
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

M S
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Paxton instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. The appellant is a citizen of the Democratic Republic of the Congo (DRC). In 2009, whilst in transit to Canada, the appellant arrived in the UK in possession of a false Canadian passport. She claimed asylum at the airport.
3. On 29 October 2009, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and human rights.
4. The appellant appealed to the First-tier Tribunal and, in a determination dated 3 February 2010, Judge M J Waygood dismissed the appellant's appeal on all grounds.
5. Thereafter, although the details are not entirely clear, the appellant left the UK in 2012 and travelled to Belgium where she again claimed asylum. She was returned to the UK under the Dublin Regulations and for a second time claimed asylum in the UK. That claim together with her claims for humanitarian protection and under Art 8 of the ECHR were refused by the Secretary of State on 18 December 2014.
6. The appellant again appealed to the First-tier Tribunal. In a determination promulgated on 15 June 2015, Judge B Lloyd dismissed the appellant's appeal. He rejected her claim to be at risk on return to the DRC on any basis including that she would be at risk on return as someone who had been suspected of the commission of a criminal offence such as a document fraud by using a false passport when leaving the DRC.
7. The appellant was granted permission to appeal to the Upper Tribunal on 21 September 2015.
8. That appeal initially came before me on 26 April 2016. In a decision sent on 13 June 2016, I concluded that there was no material error of law in Judge Lloyd's decision to dismiss the appellant's appeal (in particular upholding his adverse credibility finding) except in relation to any risk on return to the DRC on the basis that she may have left the DRC on a false document.
9. As a consequence, I directed that the appeal should be relisted for a resumed hearing before me in order to determine the issue of whether the appellant would be at risk on return to the DRC on that basis alone.
10. Following an adjourned hearing and a case management hearing on 31 August 2016 and 1 November 2016 respectively, the appeal was listed for substantive determination on 24 January 2017.
11. On 23 January 2017, the day before the listed hearing, the appellant's representatives emailed the Tribunal seeking permission to withdraw the appellant's appeal under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008. A decision on that application was adjourned by a judge at Field House to be determined by me at the hearing.
12. Mr Paxton, who represented the appellant, renewed the appellant's application to withdraw the appellant's case. He indicated that the appellant, on advice, had taken the view that the expert evidence which had been obtained did not sufficiently support the appellant's claim to be at risk on return to the DRC on the only basis the appellant now pursued her claim. Mr Paxton accepted that the proper disposal of the appellant's appeal was that it should be dismissed.
Decision
13. Although the application to withdraw is made late, and for which Mr Paxton apologised, it is properly based on pragmatic advice due to the absence of supporting expert opinion. In those circumstances, I consent to the withdrawal of the appellant's case under rule 17(2).
14. The decision of Judge Lloyd was set aside by my decision sent on 13 June 2016. I remake the decision dismissing the appellant's appeal on all grounds.
15. The appellant's appeal to the Upper Tribunal is dismissed

Signed

A Grubb
Judge of the Upper Tribunal

Date