Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03389/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 24th November 2016
On 29th November 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

MS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karnik, of Counsel
For the Respondent: Mr McVeety, Senior Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant identified as MS. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
2. The Appellant is a citizen of Iran and left his country of nationality by lorry via Turkey. It is said that he arrived in the United Kingdom some time in or about December 2013 and made a claim for asylum on 16th January 2014. The claim for asylum was advanced on the basis of his conversion from Islam to Christianity and as a result of the authorities' interests in him due to his sexual orientation. The account made reference to arrests in his history as a result of anti-Islamic conduct.
3. In a decision letter dated 12th February 2015 the Secretary of State considered the claim advanced by the Appellant but rejected it for the reasons set out in that document. The Secretary of State considered the risk on return as a result of his sexual orientation but considered that his was an account that was lacking in detail and was internally inconsistent [see paragraph 20] and the same reason was given for rejecting his account of conversion to Christianity at [28] although it had been noted that he had been able to provide some detail concerning Christianity itself. Thus the claim was rejected. It is of significance to the time of the decision, no medical evidence had been provided to the Secretary of State concerning the Appellant's medical history and any vulnerability that he may have in answering questions or providing a consistent account.
4. The Appellant appealed that decision to the First-tier Tribunal and it came before the First-tier on 5th November 2015. At that hearing the Secretary of State was not present or represented [see paragraph 1]. It is also clear that at that hearing the judge had been served with medical notes which had not been served on the Secretary of State. It does not appear that the Appellant gave formal evidence. It is not clear whether this was a decision based on the medical notes that had been disclosed or because the Respondent was unrepresented. However the judge, on the basis of the medical evidence, took into account the Presidential Guidance for the reasons set out at [34]. However it appears in the determination that the judge did ask some questions for clarification purposes of the Appellant [see paragraph 46].
5. The judge set out the concessions made in the decision letter at paragraph [36] and in relation to the Appellant's sexuality he set out his findings at paragraphs [37 to 40] in which he rejected the Appellant's account. At paragraphs [41 to 49], he considered the evidence relating to his conversion to Christianity and applying the decision of Dorodian, observed that there was no one from the church in attendance. Consequently he found that whilst the Appellant had demonstrated some interest in Christianity, there was no evidence from the church as to his attendance (although there had been written evidence provided at [45]) and that it had not been established that he would follow a religious practice which would expose him to a real risk of persecution [49]. Thus he dismissed the appeal.
6. The Appellant sought permission to appeal the decision and permission was granted by the First-tier Tribunal (Judge Astle) on 17th December 2015. At the hearing before the Upper Tribunal, Mr Karnik appeared on behalf of the Appellant and Mr McVeety on behalf of the Secretary of State. It became clear that some of the evidence before the Tribunal had not been received by the Respondent and in particular the medical notes disclosed at the hearing leading to the judge's observation at [34]. Time was given to Mr McVeety to consider those notes. Mr Karnik took the Tribunal through those notes in the context of the written grounds and the relevance to the decision under challenge.
7. At the conclusion of the submissions, it became clear that it was common ground that the decision disclosed an error of law and that due to the nature of that error, further evidence would be required (including medical evidence) and therefore both advocates were in agreement that the decision should be set aside and that the correct course would be for the appeal to be remitted to the First-tier Tribunal. In those circumstances it is not necessary for me to set out in detail the reasons for reaching that view.
8. The core error relates to the issue of consideration of risk on return. It was conceded by Mr McVeety that the judge did not consider what would happen at what is now described as the "pinch point" on return and that by reason of the medical evidence such consideration would have to be viewed through the prism of his condition.
9. The skeleton argument before the Tribunal did make reference at paragraph [18] to his diagnosis and how that diagnosis would impact on his behaviour, credibility and importantly upon risk on return. Similarly at paragraph [41] the skeleton argument gave submissions concerning further risk on return and that the fact that the Appellant wore publicly outward manifestations of his faith in the form of a crucifix tattoo on his arm and the wearing of a Christian necklace and that by reason of his medical condition, it would make him difficult to conceal the same thereby leading to risk on return. The determination at [42] makes reference to that submission and also to a photograph relating to another individual which had been mistakenly placed in the bundle and the appellant's tattoo. However there is no analysis of risk on return by reference to the outward manifestations of his faith whether it be by a tattoo or the wearing a crucifix necklace (both are referred to in the medical notes). The OGN at 3.8.12 makes specific reference to the wearing of visible crucifixes and the risk on return (Ground 2 of the written grounds).
10. There are also other findings that are absent when reaching an overall holistic view on what the risk on return would be for the Appellant which relate also to previous anti-Islamic conduct, and findings relating to previous arrests at the hands of the authorities in the form of the Basij. There are no findings in relation to that.
11. Having found an error of law it is not necessary for me to reach any further conclusions on the other grounds advanced. Those related to the extent of the anti-Islamic conduct and the risk on return and also whether there had been a proper consideration to his sexual orientation. As the advocates have agreed, the nature of the error is such that the decision should be set aside and no findings to be preserved. Thus the appeal should be remitted to the First-tier Tribunal for a hearing on all issues. Mr Karnik referred to a medical report (as opposed to medical notes) being made available to that Tribunal.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside; it is remitted to the First-tier Tribunal for a further hearing.

Signed Date

Upper Tribunal Judge Reeds