Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05368/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 17 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

mr mSb
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr E Wilford of Counsel instructed by Aden & Co Solicitors
For the Respondent: Mr S Whitwell, Senior Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of Somalia who appealed to the First-tier Tribunal against the decision of the respondent dated 11 March 2015 to refuse to grant the appellant asylum. In a decision and reasons promulgated on 17 October 2016 Judge of the First-tier Tribunal Howard dismissed the appellant's appeal on all grounds.
2. The appellant appealed with permission. As raised by the permission judge, and conceded by Mr Wilford before me, the 24 page permission grounds are unnecessarily long. However Mr Wilford helpfully relied only on the arguable errors of law identified by the permission judge as follows:
Ground 1: The judge having accepted that the appellant is a member of a minority clan concludes that he has a significant family network in Somalia without properly explaining his reasons for arriving at this finding;
Ground 2: Although the judge accepts that the appellant has been diagnosed as having had a stroke and being HIV positive he makes no proper findings as to the extent of the appellant's mental illness and the availability of treatment for the same after he took into account the report of Mr Hoehne.
Ground 3: All this affected the findings of the judge in relation to MOJ and Other (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) in view of the particular circumstances of this appellant.
Error of Law
3. I was satisfied and indicated at the hearing that the judge's approach to the appellant's circumstances in this case, in particular in relation to the appellant's mental health, discloses a material error of law. Although, in itself, the submission on the judge's finding in relation to the appellant having relatives in Mogadishu would amount to no more than a disagreement with that finding, viewed in the context of the appellant's mental health difficulties including his diagnosis of PTSD, I am satisfied that his subsequent approach to MOJ and Others was flawed.
4. This is combined with the judge's failure to adequately consider Article 8 and indeed, as Mr Whitwell conceded, to address Article 8 at all. The judge found that there was no Article 8 claim as the appellant's only relative in the UK, his wife, had separated from him following his attack on her. However the appellant has been in the UK since 2009 and there was no consideration as to whether Article 8 was engaged in relation to private life or whether there were grounds to consider the appellant's case outside of the Immigration Rules in relation to Article 8.
5. This error was compounded by the fact that the judge found at [32] that the appellant had lived with his extended family in Mogadishu "with these conditions for an extended period in the recent past'. However, although that applied to the appellant's stroke and his diagnosis of HIV, it was not disputed by Mr Whitwell that the appellant was diagnosed with PTSD and mental health difficulties following arrival in the UK. In these circumstances I am satisfied that the judge's findings, both on the applicability of MOJ and Others (as regards the effect of the appellant's particular circumstances and his mental health difficulties together with his other medical difficulties) and in relation to any Article 8 assessment, are flawed. Although Mr Whitwell did not concede the appeal he accepted that there was no consideration of Article 8.
6. In these circumstances I am satisfied that there is a material error of law in Judge Howard's consideration, such that the appeal must be set aside in its entirety and no findings are preserved. Under Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2, the nature and extent of 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 to be heard by any judge other than Judge Howard.
Notice of Decision

The appeal is remitted to the First-tier Tribunal to be considered de novo by any judge other than Judge Howard.

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: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson