Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/05290/2015
AA/05295/2015
AA/05296/2015
AA/05304/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th October 2016
On 24th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

THE SECRTARY OF state for the home department
Appellant
and

g T
L T
M M G
R G
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondents: Mr A Slatter of Counsel instructed by Tamil Welfare Association

DECISION AND REASONS

1. The Respondents (I shall refer to them as the Claimants) are a family and citizens of Sri Lanka whose appeals to require international protection were allowed by First-tier Tribunal Judge Hembrough in a decision promulgated on 16th August 2016.
2. Grounds of application were lodged. They contended that given that the judge had rejected a sizeable part of the Appellant's claim the conclusion that the principal Claimant would be at risk on return in accordance with GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) was inadequately reasoned. The judge had singularly failed to explain which risk category the Claimant fell into and why. If the judge did have in mind 7(a) of the head note of GJ that he was perceived to be a threat to the integrity of Sri Lanka as a single state such a finding was not reasoned.
3. Permission to appeal was granted on the basis of what was set out in the grounds. On behalf of the successful Claimants a Rule 24 notice was lodged. Therein it was said that the judge had applied himself to GJ. The judge had accepted the core of the Claimant's claim. The complaint made by the SSHD was essentially a reasons challenge. Reference was made to well-known case law to the effect that it was possible to understand why the SSHD had lost. The judge had not breached the legal duty to give proper reasons.
4. Before me Mr Jarvis for the Secretary of State referred me to a number of passages in GJ which indicated that, on this Claimant's profile, there was not enough for him to be associated with the LTTE. There had been material changes in Sri Lanka and it was unclear which category of GJ the judge considered the Claimant fell into. Furthermore there was no finding whether or not the judge accepted that the CID had made enquiries with the Claimant's parents in July 2013. As such the decision could not stand. So far as further procedure was concerned the matter did not necessarily have to go back to the First-tier Tribunal as it could be returned to Judge Hembrough for clarification of his findings.
5. For the Claimants reliance was placed on the Rule 24 notice. The judge had accepted quite a lot of the Claimant's account. The fact that there was no finding whether the CID had attended the home was not conclusive as it could be inferred from the judge's findings that he did accept a visit had been made. From there it could be said that the Appellant did fall into one of the risk categories set out in GJ namely that he was perceived as a threat to the integrity of Sri Lanka's single state. Furthermore any error of law by the judge was not sufficiently material to permit the decision to be set aside.
6. I reserved my decision.
Conclusions
7. Judge Hembrough clearly found this a difficult case noting, as he did, in paragraph 63 that on the balance of probabilities he would have dismissed the appeal but having regard to the lower standard applicable in this jurisdiction he allowed it on asylum grounds. What troubled the judge was that the Claimant's account was undermined by numerous inconsistencies which he accepted "may" be explained by his traumatic experiences and PTSD and what he found to be a fabrication of evidence regarding the fate of Jegan, his failure to claim asylum on arrival and the absence of supporting evidence.
8. Weighing it all up the judge found that taking into account GJ and paragraph 339K of the Rules he allowed the Claimant's appeal.
9. Unfortunately the reasoning goes no further than that. It might be obvious in some cases that a Claimant does fall within a category set out in a country guidance case but given the changes in Sri Lanka and the mixed credibility findings in this case it was incumbent upon the judge to be more specific and identify the particular category of persons at real risk of persecution that the Claimant fell into. It is not unfair to say that paragraph 63 is almost devoid of reasoning as it is a conclusion only and why it is concluded that GJ applies to this Claimant is unclear. Not to provide adequate reasoning for a conclusion is often a material error of law and it is in this case. Furthermore there is no factual finding as to whether or not the Sri Lankan CID did make enquiries with his parents as to his whereabouts in July 2013 which is arguably an important issue as it goes to the risk on return. Given the mixed credibility findings I do not think that the judge's acceptance of that matter can be inferred as was suggested to me by Mr Slatter. Had the Claimant been found wholly credible then an inference in his favour could probably have been drawn. However this is a Claimant who has, on the judge's findings, fabricated a significant part of his account which is a finding that does not sit easily with his appeal being allowed.
10. For these reasons I am satisfied that the judgment is not safe and must be set aside. I have concluded that because further fact-finding is necessary that the matter should be remitted to the First-tier Tribunal to be heard by a judge other than Judge Hembrough.
11. The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. Meantime the anonymity order will be continued.

Notice of Decision
12. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
13. I set aside the decision.
14. I remit the appeal to the First-tier Tribunal.

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 or any member of their family. 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 24th October 2016

Deputy Upper Tribunal Judge J G Macdonald