Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05380/2014

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 12 September 2016
On 14 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

K. A.
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cleghorn, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Pakistan who entered the UK as a student in October 2010. She became an overstayer in 2012, and made an application for protection in February 2014. That application was refused on 15 July 2014 and a decision to remove her from the UK was made in consequence by reference to s10.
2. The Appellant's appeal against those decisions was heard on 18 May 2016, and it was allowed on asylum and Article 3 grounds, in a decision promulgated on 2 June 2016 by First Tier Tribunal Judge Head-Rapson.
3. The Respondent was granted permission to appeal that decision on 24 June 2016 by Designated Judge Manuell on the basis it was arguable the Judge's approach to the evidence before her was flawed for failure to take into account material evidence, and for failure to follow the correct approach to the medical evidence relied upon by the Appellant.
4. Thus the matter comes before me.

Error of Law?
5. Both parties were agreed before me that the Respondent had served upon the Appellant a document verification report dated 13 January 2016 ["the DVR"], and had relied upon that at the hearing of the appeal as evidence that the Appellant was a liar who had resorted to using forged documents to maintain a bogus claim to asylum. The content of the DVR was brief, but direct. The author had spoken to the policeman at Saddar Police Station who was said to be the creator of the FIR that the Appellant had relied upon as a genuine document, and as evidence that corroborated her account of the risks she would face upon return to Pakistan. The policeman in question had however disowned the document in question as a forgery, and had identified the reference number it bore as relating to an entirely different document that did lie in the records of the police station.
6. On the face of it the DVR was cogent and compelling evidence that both the Appellant, and in turn, the Judge, needed to engage with. The parties are however agreed before me that the decision makes no reference to it, either expressly or implicitly. Thus Ms Cleghorn on behalf of the Appellant accepts that the Respondent has made out Ground 1(i) of her application for permission, because the very existence and content of the DVR goes to the heart of the credibility of the Appellant's case.
7. In the circumstances it is unnecessary to go through each of the other complaints that are raised by the Respondent in relation to the decision, which together touch not only the approach taken to the Appellant's general credibility as a witness, but also the adequacy of the reasoning offered for the findings of fact that were made. Put shortly however the Respondent's case was that there were a number of reasons why the Appellant's evidence should have been approached with great caution as highly unreliable. In turn those had to inform the approach taken to the reports the Appellant had made to the psychiatrist, and his diagnosis. If her reports to him of her experiences were untrue that raised the issue of what value could be attached to his diagnosis.
8. Since both parties were agreed that the decision had to be set aside and remade, the focus of the hearing then turned to the mechanism for doing so. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, as requested by both parties. In the circumstances of the appeal I am satisfied that this is the correct approach. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Head-Rapson.
ii) An Urdu interpreter is required for the hearing of the appeal.
iii) There are anticipated to be three witnesses, and the time estimate is as a result, 4 hours.
iv) There is no need to provide a further report from Dr Lingam, since the current report is dated 13 May 2016, and there is no suggestion there has been any material alteration in the Appellant's condition since it was prepared.
v) The appeal is to be listed on the first available date at the North Shields hearing centre after 30 September 2016 for full hearing. No further Directions hearing is presently anticipated to be necessary. Should the Appellant anticipate this position will change, she must inform the Tribunal immediately, providing full details of what (if any) further evidence she seeks to rely upon.
vi) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Decision
9. The decision promulgated on 2 June 2016 did involve the making of an error of law sufficient to require it to be set aside and the appeal to be reheard. Accordingly the decision upon the appeal is set aside and the appeal is remitted to the First Tier Tribunal with the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Head-Rapson.
ii) An Urdu interpreter is required for the hearing of the appeal.
iii) There are anticipated to be three witnesses, and the time estimate is as a result, 4 hours.
iv) There is no need to provide a further report from Dr Lingam, since the current report is dated 13 May 2016, and there is no suggestion there has been any material alteration in the Appellant's condition since it was prepared.
v) The appeal is to be listed on the first available date at the North Shields hearing centre after 30 September 2016 for full hearing. No further Directions hearing is presently anticipated to be necessary. Should the Appellant anticipate this position will change, she must inform the Tribunal immediately, providing full details of what (if any) further evidence she seeks to rely upon.
vi) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Deputy Judge of the Upper Tribunal JM Holmes
Dated 13 September 2016