Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03855/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On 12th August 2016
On 06th September

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mrs Elima Ndoro
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Nyawanza (Solicitor)
For the Respondent: Ms Z Ahmad (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Pooler, promulgated on 6th January 2016, following a hearing at Bennett House, Stoke-on-Trent, on 18th December 2015. In the determination, the judge made wholesale findings of fact that were against the Appellant, but purported then to allow the appeal on asylum grounds (whilst dismissing it on human rights grounds under Articles 3 and 8 of the ECHR). The Respondent Secretary of State appealed the decision, and upon permission being granted on 3rd February 2016, the matter arises before me today.
The Appellant
2. The Appellant is a female, a citizen of Zimbabwe, who was born on 12th June 1952. She had arrived in the UK on 20th June 2002 with leave to enter with valid entry clearance which was valid only until 13th June 2003. She has remained here ever since.
The Appellant's Claim
3. The Appellant's claim is that she would be persecuted in Zimbabwe because she had claimed asylum and had remained outside Zimbabwe for many years. She was afraid of "Mugabe's people" and referred to the exodus of many teachers from Zimbabwe especially between 2000 and 2002 (see paragraph 7 of the determination). She is also HIV positive (paragraph 8). However the judge had found the Appellant's account to be inconsistent (paragraphs 15 to 16). Moreover, the Appellant had delayed in claiming asylum (paragraph 18). She had never been involved in politics in Zimbabwe (paragraph 19). The judge had regard to the country guidance case in relation to teachers in Zimbabwe (paragraph 21). He concluded that the Appellant would not be at risk (paragraph 33). He also concluded that the Appellant's HIV diagnosis did not mean that she would be without care and treatment or at risk in Zimbabwe (paragraphs 35 to 36).
4. He went on to hold that there was nothing exceptional by reference to which the Appellant's circumstances should be considered outside the Rules (paragraph 43). He referred to the "lack of evidence" and concluded, "the Tribunal is frankly unable to reach a finding that removal would have adverse consequences for the Appellant's health because there is no up-to-date medical evidence" (paragraph 45). The Appellant's initial presence in the UK was precarious (paragraph 46). The judge did not hear any evidence from the Appellant's family members or any friends or contacts (paragraph 47). The judge concluded that, "I am persuaded that the Respondent's decision was and remained proportionate and the Article 8 appeal must be dismissed" (paragraph 47).
Grounds of Application
5. The grounds of application state that the judge should have returned to his determination under the "Slip Rule", and reissue the determination because he was wrong to have allowed it on asylum grounds when it is clear that he intended to dismiss the appeal. This is because at paragraph 16 the judge found that the Appellant was not targeted personally in Zimbabwe. At paragraph 18, the judge found that the Appellant's credibility has been affected by her actions in delaying her claim to be at risk. At paragraph 25 the judge found that the Appellant would be returned to Zimbabwe as a former teacher with no political profile. At paragraph 32 the judge found that there was nothing in the evidence to support a finding that the Appellant would be at risk of persecution in her home area of Harare. At paragraph 33 there was a further finding that the Appellant would not be at risk upon return at the airport.
6. On 3rd February 2016, however, permission to appeal was granted on the basis that whereas it was arguable that the judge did intend to dismiss the asylum and humanitarian protection appeals in line with the human rights appeal, as is evident from the final sentence of paragraph 32 in which the judge states, "I can find nothing in the evidence to support a finding that the Appellant would be at real risk of persecution if she returned to her home area of Harare", the fact was that paragraph 31 of the Procedure Rules did not allow any amendment to a decision once the decision had been sent out. This was the position here. The decision had been promulgated.
Submissions
7. At the hearing before me on 12th August 2016, Ms Ahmad, appearing on behalf of the Respondent Secretary of State, submitted that although paragraph 31 of the Procedure Rules states that the Tribunal may amend the decision at any time, the Tribunal decision in Katsonga [2016] UKUT 00228, makes it clear that this is not possible, if the intention is to reverse the effect of a decision that has already been made. All one can do is simply set aside the decision on the basis that there is an error of law and remit it back to the First-tier Tribunal.
8. In reply, Mr Nyawanza, who is an experienced practitioner, submitted that he would have to agree that Katsonga had precisely this effect. However, he urged that, rather than the Upper Tribunal remake the decision, it was appropriate for this matter to be remitted back to a judge other than Judge Pooler for the appeal to be reheard again, just in case there was a prospect of a cross-appeal or any new evidence was to be furnished.
9. In reply, Ms Ahmad submitted that she had seen nothing to the effect that any new evidence was to be submitted or the appeal was to change in any other material respect to what it had previously been and this being so there was no reason why this Tribunal could not remake the decision itself.
Error of Law
10. I am satisfied that the making of the decision by the judge did involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
11. This is clearly a case where the judge makes express finding that, "there is in my judgment nothing in the country guidance to indicate that a return to an area of Harare which was not said to be high density would put the Appellant at any heightened risk" (paragraph 32). The judge found that the Appellant was a teacher with no political affiliation, "who had experienced no threats or intimidation during her 26 years of employment" (paragraph 32). He then ended this analysis with the conclusion that, "I can find nothing in the evidence to support a finding that the Appellant would be at real risk of persecution if she returned to her home area of Harare" (paragraph 32).
12. In the circumstances, the conclusion in the "notice of decision" that, "the appeal on asylum grounds is allowed" could not have been an intended conclusion by the judge in this case. On the face of it, accordingly, it amounts to an error of law. Second, authority exists in the form of Katsonga [2016] UKUT 00228 where the Tribunal stated that, "once a decision has been given in a particular sense it may be subject to setting aside under Rule 32 or the appellate process", but the power under the Slip Rule does not enable a decision to be reversed at the instance of a losing party, because "in all other respects, having made and sent out the decision" the original judge is functus (paragraph 10).
Remaking the Decision
13. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. Under Rule 7.2 of the Practice Statement, it is made clear that the general position is for the Upper Tribunal to remake the decision, an error of law having been first found, and this being so, I see no reason why the decision cannot be remade by this Tribunal. Given what Judge Pooler below held, in his comprehensive and well-analysed determination, the only appropriate decision in this appeal is to dismiss the appeal of the Appellant and I so decide.
Notice of Decision
14. The decision of the First-tier Tribunal involved the making of an error of law. I set aside the decision of the original judge. I remake the decision as follows. This appeal is dismissed.
15. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 5th September 2016

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Juss 5th September 2016