Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01870/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 9 August 2016
On 17 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

DSG
(anonymity order continued)
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr B Beckford, instructed by Sultan Lloyd Solicitors

DECISION AND REASONS

1. The Secretary of State appeals with permission to the Upper Tribunal against the decision and reasons statement of First-tier Tribunal Judge Jessica Pacey that was promulgated on 18 November 2015. Judge Pacey found the appellant was a refugee from Afghanistan on account of his Sikh religion.
2. After listening to Mr Mills and Mr Bedford, I realised that the question I am asked to resolve is in effect whether Judge Pacey had proper regard to the Upper Tribunal's country guideline case, TG and others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 595 (IAC). Judge Pacey refers to this case at [42]. She did not hear submissions in relation to this case because it was reported after the appeal was heard but before Judge Pacey issued her decision.
3. Mr Mills submits that Judge Pacey failed to make relevant findings in relation to the third and fifth head notes. In its guidance, he argues, the Upper Tribunal had reminded judges of the need to assess each case on its own facts to decide whether a Sikh would face a real risk of persecution on return and whether it would be reasonable to expect a Sikh to relocate within Afghanistan. Mr Bedford argues that the judge was clear in her finding that she found the appellant to be credible and therefore she needed to do no more.
4. Mr Bedford argues that it is difficult to identify how the Home Office's complaints amount to an error of law. Although I agree that in hindsight the Home Office could have presented its arguments more cogently, I do not agree that there is no merit in the complaints. Of course the Home Office cannot rely on an argument that a judge had erred simply for being brief since brevity is to be commended. But it is clear that the complaints are not in fact about brevity but focus on whether Judge Pacey made adequate findings.
5. It is evident to me that Judge Pacey gives her key findings in relation to TG from [45] to [48]. She examined the appellant's financial circumstances and concluded that it was reasonably likely the appellant would not have access to basic accommodation for the reasons described in TG and that the appellant's son would not have access to education in Afghanistan because the appellant himself had not been educated. The judge also concluded that it would be impractical for the appellant to relocate because of the general situation in Afghanistan. In reaching her conclusions, Judge Pacey had regard to the circumstances of the appellant's father and identified they were different because he had taken a non-Sikh partner. The judge found there was no reason to think the appellant would be able to enjoy any protection from her presence and this is unchallenged.
6. The Home Office challenges these findings on the basis that the judge has not explained how she came to them. In its reasons for refusal letter, the Home Office challenged the appellant's account of his brother being kidnapped and their father selling his shop to pay the ransom. At no juncture has the judge explained why she accepted this account even though her conclusions at [45] rely on a positive finding of credibility on these issues. Although Judge Pacey considered the appellant's credibility from [23] to [36] her findings therein are focused on the question of whether the appellant is from Afghanistan (a matter that was in dispute but is no longer disputed). There is no assessment in the decision and reasons statement to show why she accepted the appellant's account of his brother's kidnap.
7. I am also concerned that the judge has not provided reasons for accepting the appellant's general credibility and therefore her assessment of credibility is contrary to paragraph 339L of the immigration rules insofar as it has not properly considered s.8 of the 2004 Act. The appellant's account was not supported by documentary evidence and therefore to assess credibility the judge had to consider whether the five-point test was satisfied. The analysis at [35] does not consider the fact the appellant was handed to the French authorities and remained in France for over a month. The judge's conclusions are only sustainable if it is assumed the appellant and his family travelled to the UK immediately after being encountered rather than in the circumstances actually established by the Home Office.
8. I conclude that Judge Pacey had not made findings on relevant matters and therefore her assessments of the appellant's credibility and his circumstances should he return to Afghanistan are not sustainable. I find there is an error on a point of law that requires the decision to be set aside. As further evidence and argument will be needed to resolve the issues, it is appropriate to remit the appeal to the First-tier Tribunal for a fresh hearing where all issues can be considered. The hearing should be before any judge other than Judge Jessica Pacey.
Decision
The decision and reasons statement of First-tier Tribunal Judge Jessica Pacey contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a hearing afresh before any judge other than Judge Pacey.

Signed Date 16/08/2016

Judge McCarthy
Deputy Judge of the Upper Tribunal