AA/01755/2015

• Status of case: Unreported
• Hearing date: 29 Sep 2016
• Promulgation date: 4 Oct 2016
• Publication date: 25 Jul 2018
• Last updated on: 25 Jul 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01755/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision Promulgated
On 29 September 2016
On 04 October 2016



Before

The Hon. Mr Justice McCloskey, President,

Between

RS
[ANONYMITY DIRECTION MADE]
Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent



Representation:

For the Appellant: Ms J Blair, of Counsel, instructed by Legal Justice

For the Respondent: Mr J Harrison, Senior Home Office Presenting Officer


DECISION

1. The decision of the Secretary of State underlying this appeal was one refusing the application of the Appellant, a national of Afghanistan aged 30 years, for asylum on the basis of his religious persuasion. The First-tier Tribunal ("FtT") dismissed the ensuing appeal.

2. The thrust of the grant of permission to appeal is that the FtT arguably erred in law by failing to make any finding about the Appellant's religious persuasion.

3. In considering whether a material error of law has been demonstrated, I adopt two main starting points. The first is that the Judge did indeed fail to make any finding of the aforementioned kind. The second is that given the centrepiece of the Appellant's case, this was an undeniably material issue. The main facts and factors bearing on this issue are what the Appellant said at his screening interview; how he dealt with the discrete screening interview issue at the hearing; the consideration that the Appellant speaks Punjabi; the non-Muslim nature of his first name; the detailed evidence which he gave during the asylum interview (proper) relating to the elements and tenets of Sikhism; and the "COI" evidence of the close approximation of Hindus and Sikhs in both Russia and Afghanistan, without any distinction between the two groups.

4. As explained in my ex tempore judgment at the conclusion of the hearing, I conclude that the FtT made a material error of law in two inter-related respects. First, I consider that it was incumbent upon the Judge to make a clear and positive finding about the Appellant's religious persuasion. Second, the Judge was further required to engage positively and clearly with the various pieces of evidence summarised above and to deal with these in the findings and conclusions made. View through this prism, it may be said that there was probably a third material error of law, namely a lack of adequate reasoning. The determination does not demonstrate that the subtleties and nuances identified above were properly appreciated and addressed.

5. My analysis and conclusions above are made in a context where the Tribunal was under a duty to scrutinise anxiously all material aspects of the Appellant's case.


DECISION

6. The appeal is allowed to the extent that the decision of the FtT is hereby set aside. I remit the case to a differently constituted FtT for fresh consideration and decision.






THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 29 September 2016