Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04384/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 30 September 2016
On 3 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
HAROON [H]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Mr Jagadesham instructed by Fadiga & Co.
For the Respondent: Mr A Mc Vitie Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge M Davies promulgated on 3 June 2016 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum
Background
4. The Appellant was born on 1 January 1988 and is a national of Afghanistan. He claimed to be an uneducated farmer married with one child. In essence his claim was that he was at risk from the Taliban because his brother served in the Afghan National Army. He stated that 8 months before the death of his brother he was beaten up during the rice harvest of 2011. After his brother was killed the Appellant was threatened via his brother's mobile phone that he would be killed because his brother joined the army. The Appellant came to the UK by lorry and claimed asylum on 20 September 2012.
5. On 23 February 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) The Appellant claim that his brother was in the Afghan National Army was not accepted as it was vague at to his role and the documents he produced in relation to his service were all photocopies.
(b) His account of being attacked because of his brother's service was inconsistent.
(c) The claim that he was attacked by members of the Taliban was purely speculative.
(d) The Appellant failed to pursue his complaint to the police about the attack.
(e) The medico legal report fails to consider any possible alternative reasons for the scars that the Appellant had as a result of the claimed assault and fails in concluding that the scars arose out of a single causative event to follow the guidance in KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC); the conclusion that the Appellant would be at risk of self harm is inconsistent with the Appellants own evidence and the fact that he expressed no such feelings to the Respondent, his GP or the expert.
(f) The Appellants claim that his brother was killed during the rice harvest a week prior to his departure from Iran, 3 months before the asylum interview was inconsistent with the once yearly rice harvest in September/October given that he left Afghanistan on 10 July 2012.
(g) The Appellants late claim for asylum undermined his credibility.
(h) The country conditions did not warrant leave under Article 15(c)

The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Davies ("the Judge") dismissed the appeal against the Respondent's decision.
7. Grounds of appeal were lodged arguing:
(a) That the Judge dismissed the medico legal report and documentary evidence on the basis of the negative credibility findings.
(b) Failed to consider the inconsistencies in the light of the mental vulnerability of the Appellant.
(c) His approach to the medical evidence was flawed.
(d) His approach to s8 of the 2004 act was flawed in that he treated his failure to claim in countries other than the UK as fatal to his credibility.
8. On 30 June 2015 First-tier Tribunal Judge Osborne gave permission to appeal.
9. At the hearing I heard submissions from Mr Jegadasham on behalf of the Appellant that he relied on the grounds of appeal.
10. On behalf of the Respondent Mr Mc Vitie submitted relied on the Rule 24 response.
The Law
11. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Finding on Material Error
13. Having heard those submissions, I reached the conclusion that the Tribunal made material errors of law.
14. It was argued that the Judges approach to the medico legal report and the documentary evidence was flawed in that 'he put the cart before the horse' relying on the leading judgement in Mibanga [2005] EWCA Civ 367 where at paragraph 24 Wilson J stated:
24. "What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. Mr Tam has drawn the court's attention to a decision of the tribunal dated 5 November 2004, namely HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which, in paragraph 22, it said:
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come."

15. The Judge in his decision made adverse findings in relation to the Appellants account at paragraphs 58 and 58 stating twice in paragraph 59 that the Appellants credibility was 'fatally 'damaged. He then in paragraph 60 states 'I now turn to the medico legal report'. Such an approach suggests that having reached a negative conclusion on credibility he then looked at the medico legal report and indeed he stated 'As I have made clear I do not accept that the Appellant has given a truthful account. Therefore I do not attach any weight to the opinion of Dr Robinson based on the Appellants evidence.' Such an approach is flawed in that it clearly deals with the expert evidence as an add on rather an integral part of the findings. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
16. It was also argued that the Judges approach to s8 Treatment of Claimants Act 2004 was flawed that he was section 8 should not be the starting point for the assessment of credibility. The behaviour identified in that section is a factor to be taken into account in the overall assessment of credibility and its importance will vary from case to case. The Judge in this case stated twice at paragraph 59 that the failure of the Appellant to claim asylum in any of the countries he passed through fatally damaged his credibility as there was no proper assessment of the Appellants particular circumstances in that he claimed to be uneducated and illiterate, in the hands of an agent and suffering from PTSD. To make s8 factors determinative of credibility in those circumstances was, I am satisfied, a flawed approach. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
Remittal to the First-tier Tribunal
17. I therefore found that errors of law have been established and that the Judge's determination cannot stand and must be set aside in its entirety. All matters to be redetermined afresh.
18. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
19. In this case I have determined that the case should be remitted as I have found there was an error of law because the Appellant did not have a fair hearing due to failure in the overall approach to credibility. In this case none of the findings of fact are to stand and the matter will be a complete re hearing.
20. I consequently remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on a date to be fixed before me.
21. I made the following directions for the resumed hearing:
List for 2.5 hours
Pushtu interpreter

Signed Date 30 September 2016
Deputy Upper Tribunal Judge Birrell