Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa035512015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 6th June 2016
On 10th June 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

BD
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G Brown, Counsel instructed on behalf of Appellant
For the Respondent: Mr A McVeety, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Turkey. In the light of the circumstances of the Appellant's claim I make an anonymity order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any members of his family. The direction applies both to the Appellant and to the Respondent. Failure to comply with the direction could lead to contempt of court proceedings.
2. The Appellant appeals with permission against the decision of the First-tier Tribunal (Judge Tobin) who, in a determination promulgated on 29th June 2015 dismissed his appeal against the decision of the Secretary of State made on 17th February 2015 to refuse his claim for asylum and to give directions for his removal.
3. The Appellant's immigration history can be summarised as follows. The Appellant entered the United Kingdom on 18th February 2014, travelling by aeroplane to an unknown country, where he boarded another plane for London. He claimed asylum on arrival in the United Kingdom and his claim for asylum was based upon his fear of persecution on return due to his ethnicity and on the basis of actual or imputed political opinion; through his own history and that of his family.
4. The Respondent refused the claim made by the Appellant and gave detailed reasons for refusal in the letter of 16th February 2015. The Respondent's letter accepted that the Appellant had suffered unequal treatment and discrimination on the basis of his ethnicity and religion but that such discrimination did not amount to persecution (paragraphs 40 - 41 of the refusal letter).
5. The Appellant exercised his right to appeal that decision and the appeal came before the First-tier Tribunal on 20th May 2015. In a determination promulgated on 29th June 2015 the First-tier Tribunal dismissed his appeal on the basis that he failed to demonstrate a reasonable degree of likelihood that he would be at risk of persecution from the state or from non-state actors on account of his political opinion, ethnicity and his religion.
6. The Appellant sought permission to appeal that decision and on 4th September 2015, Upper Tribunal Judge Coker granted permission for the reasons set out in her decision.
7. The matter came before the Upper Tribunal. It was accepted on behalf of the Respondent that there were issues, as set out in the grounds and the grant of permission, that the judge had not considered. They related to findings of fact made relating to the position of family members and also events that had occurred in Turkey. After hearing from both representatives, I informed the parties that I had reached the conclusion that the determination did disclose errors of law and that the determination should thereby be set aside. Both parties submitted that in view of the nature of the errors of law identified, that the correct course to take would be to remit the appeal to the First-tier Tribunal to be heard afresh and for findings of fact to be made on the relevant issues.
8. I therefore set out below the reasons for reaching the decision that the determination discloses errors of law.
9. The first issue relates to the issue of risk on return on account of his links to his family. It is plain from reading the witness statement at paragraph 23, in addition to the written material in the Appellant's bundle at pages 21 to 23 and 17 to 19, that evidence had been provided relevant to this issue. Whilst the judge made reference to this at [36] there were no findings made upon that evidence or upon that issue. Consequently the position of the family members relevant to the assessment of risk upon return was not considered (see paragraph 120 of IK (returnees, records IFA) Turkey CG [2004] UKIAT 00312).
10. The second issue relates to consideration of relevant country guidance. As set out in the grounds, the country guidance decisions of IA HC RD HG (risk guidelines) Turkey CG [2003] UKAIT 0034 and IK (returns - records IFA) Turkey CG [2004] UKIAT 00312 were the cases relevant to the issue on risk on return of those suspected of membership of a banned political party. There is no reference in the determination to the risk factors set out in those determinations, in particular, reference to the individual's history and what information would be known of this Appellant both at the point of return or, if internal relocation was possible through registration in that area. There were no findings of fact made as to the existence of any records or whether there was evidence relevant to the Appellant in any local records which might trigger interest in the Appellant when further enquiries were made. Whilst the country guidance decisions are both now of some age, they make reference to relevant issues to be considered when looking holistically at the issue of risk on return.
11. The grounds also assert that the judge's findings at paragraphs 35 to 38 are unclear and are not properly reasoned. It is asserted that the Secretary of State had accepted that the Appellant had suffered unequal treatment and discrimination on the basis of his ethnicity and religion are set out at paragraph 40 of the refusal letter and that the judge made reference to this at paragraphs 18 to 24 but then went behind the Respondent's concession by a finding made at paragraph 35. Thus it was submitted that it was difficult to discern from the judge's findings which aspects of the Appellant's historical account had been rejected and that proper reasons had not been given which were necessary in the light of the concession made in the refusal letter.
12. Failure to follow a concession can amount to a legal error (see SS v SSHD [2010] CSIH 72F). However it is important to look at whether or not there was a concession made by the Secretary of State and if so, the effect of that. The refusal letter at paragraph 16 set out the incidents referred to by the Appellant in his interview. At paragraph 17, the Secretary of State found that the Appellant's account of these incidents of discrimination to be "detailed, internally consistent and plausible". However, the paragraph went on to state it was not possible to verify the occurrence of the incidents from background information therefore this aspect of the account remained unsubstantiated but would be considered under paragraph 399L at a later stage. At paragraph 20 after considering paragraph 399L it was stated by the Secretary of State that regarding those incidents of discrimination, it had been concluded that the Appellant had met all the necessary criteria of paragraph 399L therefore the Secretary of State gave the Appellant the "benefit of the doubt" (see paragraph 21. At paragraph 40 of the refusal letter, the Secretary of State considered the assessment of future fear and made reference again to the unequal treatment and discrimination from both the population and the authorities. She went on to state "therefore, whilst it is accepted that you have suffered unequal treatment and discrimination on the basis of both your ethnicity and your religion, this treatment does not reach the level of persecution ...".
13. The determination deals with this issue at paragraphs 34 to 35. At paragraph 34, the judge made reference to the Appellant having raised a number of incidents which he contends supported his case and the judge recorded that "it is the Respondent's position that these are, at most instances of discrimination (or less favourable treatment) on grounds of ethnicity or religion which fall far short of persecution". However at paragraph 35 the judge makes reference to further evidence given by the Appellant at the hearing and reached the conclusion that "the bulk of these incidents occurred prior to the Appellant's two visa applications and were not mentioned previously". The judge went on to state that the Appellant, when he made his claim rested primarily on Article 8 and provided very little of the detail set out in his witness statement. The judge went on to state "where the Appellant's statement and evidence referred to a matter raised in his recent application this has been considerably embellished, which has undermined the credibility of his evidence".
14. Having read the determination and the refusal letter alongside the grounds, it does not seem to me that the judge went behind the concession but that what the judge has stated at paragraph 35 was that the new information that had been provided by the Appellant was not credible because of it having been provided at such a late stage. Those matters had not been put before the Secretary of State at a time when the concession was given. Therefore whilst it was open to the judge to make findings on evidence that had not been considered by the Secretary of State, if, having formed a view which was contrary to that concession made by the Respondent, it was incumbent on the judge to advise the parties and for them to be given the opportunity to make submissions accordingly. Furthermore, as the grounds are set out, it was difficult to discern from those paragraphs, which aspects of the Appellant's historical account had been rejected and if it had been, to give reasons for reaching that conclusion.
15. In the light of those errors, I am satisfied that the decision of the First-tier Tribunal discloses material errors of law and should be set aside. As set out earlier it was agreed by consent between the parties that the appropriate course was for the decision to be set aside and for the appeal to be remitted to the First-tier Tribunal for there to be an assessment of all the evidence to be considered including further oral evidence and for findings of fact to be made by reference to the country guidance decisions. Whilst it is not the ordinary practice of the Tribunal to remit cases to the First-tier Tribunal, there are reasons why in this case such course has been adopted having given particular regard to the overriding objective and that there are issues of fact that are central to this appeal that require determination.
16. Therefore the decision of the First-tier Tribunal is set aside and the case remitted to the First-tier Tribunal for a hearing in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act and Practice Statement of 10th February 2010 (as amended).

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. 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 Date: 10th June 2016

Upper Tribunal Judge Reeds