Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number AA/04945/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower
Decision and Reasons Promulgated
On 14th February 2017
On 10th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

A M
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms E Rutherford (Counsel, instructed by French and Co)
For the Respondent: Mr M Diwnycz (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant's appeal against the refusal of her application for asylum was heard by First-tier Tribunal Judge Birrell at Stoke on Trent on the 4th of August 2015 and dismissed in a decision promulgated on the 17th of August 2015. In dismissing the appeal the Judge found that the Appellant was not credible with regard to being detained and ill-treated in Ethiopia. However the Judge went on to find that the Appellant's sur place activities would place her at risk in the event of her being returned giving reasons in paragraph 86.

2. The Respondent sought permission to appeal to the Upper Tribunal arguing that the Judge had not made findings on whether the Appellant genuinely held the claimed political opinions, if not the question of being required to lie on return would not be offended. It was also argued that the Judge had erred in relation to the Appellant's sur place activities and in finding that these would be known to the authorities.

3. Permission was granted limited to the genuineness of the Appellant's expressed political views. The Respondent sought permission to appeal on the second issue and further grounds: a failure to resolve a conflict on the evidence as the expert had not considered the issue of the credibility of the Appellant's opinions and it was also argued that there had been a failure to apply the country guidance case of MB relating to those with significant history and identified as OLF members or sympathisers. The renewed application was considered by Upper Tribunal Judge Allen who granted permission on the rejected ground from the first application and both grounds of the renewed application.

4. At the hearing the Home Office relied on the grounds of application as drafted and added the observation that 8 meetings of a period of 10 years did not make the Appellant a frontline member, it was not a high profile. Ms Rutherford observed that there were no clear findings on whether the Appellant's views were genuinely held but she went on to submit that the findings made were open to the Judge on the evidence. It was agreed by the representatives that if I found that there was an error of law then the case should be remitted to the First-tier Tribunal for re-hearing.

5. Whilst the previous decision of Judge Hall formed the starting point for the consideration of the facts of the appeal the Judge was still obliged to consider the evidence presented and to make relevant findings. The question of the genuineness of the Appellant's views are relevant to her actions if returned to Ethiopia and questioned and so on that ground the Judge has erred.

6. If the Appellant would be regarded by the authorities in Ethiopia as being in OLF sympathiser or member then that would not be relevant as she would be at risk of persecution in any event and the question of removal would not arise. However the Appellant's account of events in Ethiopia had been rejected and her attendance at OLF events in the UK had been limited to 10 demonstrations since 2006. Judge Hall had found that the Appellant was not a supporter of the OLF and in the absence of findings with regard to her bona fides and the Judge’s doubts about the Appellant's credibility I am satisfied that the Judge erred in finding that the Appellant would be at risk on return.

7. Whilst the unchallenged findings of Judge Hall form the starting point for the consideration of the Appellant's case I do not see how any findings in the instant appeal can be preserved from the decision of Judge Birrell. The case is remitted to the First-tier Tribunal at Stoke on Trent to be re-heard by a different Judge.

CONCLUSIONS

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

I set aside the decision.

The appeal is remitted to the First-tier Tribunal for re-hearing by a Judge other than Judge Birrell.

Anonymity

The First-tier Tribunal made anonymity order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award

I make no fee award which remains in issue for the First-tier Tribunal at the conclusion of the appeal.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 10th March 2017