Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA055712015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 14 June 2016
On 17 June 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL McCARTHY

Between

QA
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by Coventry Legal Centre
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

I consider it appropriate to make an anonymity order in the Upper Tribunal under Procedural Rule 14(1) to prohibit the disclosure or publication of any matter likely to lead members of the public to identify the respondent. To give effect to this order the respondent is to be referred to by the initials above.
1. The appellant appeals with permission against the decision and reasons statement of First-tier Tribunal Judge Parkes that was promulgated on 17 July 2015.
2. Judge Parkes was required to determine whether the appellant could relocate to Kabul. This was the only issue in the appeal because the Home Office accepts the appellant has a well-founded fear of persecution in his home area in Afghanistan and proposes he would be able to live safely in Kabul.
3. The appellant argues that Judge Parkes failed to apply the correct law and therefore his finding that the appellant could relocate in Afghanistan was legally flawed. The grounds of appeal are detailed and identify the relevant legal principles that apply.
4. Having discussed Judge Parkes's decision and reasons statement with Mr Pipe and Mr Mills I reach the conclusion that the appellant is correct and as a result the decision would have to be set aside. There are a number of intertwined reasons for my decision.
5. Judge Parkes does not identify the legal principles relating to internal relocation. Although in his second to fifth paragraphs he references general provisions relating to the assessment of asylum claims, his self-direction stops at paragraph 339N of the immigration rules. The provisions relating to internal relocation are in paragraph 339O. Paragraph 339O provides a reasonable test. It draws from article 8 of the Qualification Directive (2004/83/EC) which in turn is derived from extensive British and European jurisprudence, perhaps most notably Januzi v SSHD and others [2006] UKHL 5.
6. Of itself the failure to specify relevant legal principles is not a legal error. It is often the case that the application of relevant principles is implicit in a decision. Unfortunately, I am unable to find where Judge Parkes applies such principles. Mr Mills suggests there were elements of a balancing exercise in paragraph 12, which suggests an assessment of reasonableness has been undertaken.
7. In our discussion, Mr Mills and Mr Pipe acknowledged that Judge Parkes's conclusions in paragraph 12 were problematic because of a lack of clarity over what standard of proof he was applying to the evidence he was balancing which undermines the quality of any balancing exercise.
8. At paragraph 2 of his decision, Judge Parkes correctly identifies that the lower standard of proof applied to the assessment of evidence in relation to the appellant's asylum case. Judge Parkes refers to a real likelihood test, which is a good descriptor of how the evidence should be approached in such cases.
9. At paragraph 8 Judge Parkes makes findings regarding the appellant's medical issues and concludes that the appellant's evidence failed to establish that he could benefit from article 8 on medical grounds. This and is not (and never has been) contested. In assessing the evidence in this context Judge Parkes correctly refers to the high threshold that must be applied in medical cases.
10. At paragraph 12, where Mr Mills suggests Judge Parkes was considering reasonableness, Judge Parkes draws on his findings at paragraph 8 when assessing the reasonableness of internal relocation. In so doing, Judge Parkes inadvertently applies a higher threshold test in a situation where he has to apply a real likelihood test of the evidence. This undermines his assessment. I conclude that the assessment of reasonableness of internal relocation undertaken by Judge Parkes failed to apply relevant legal principles.
11. At this juncture it is appropriate to indicate that this failure is compounded by the fact Judge Parkes fails to follow guidance given by the Upper Tribunal about what factors should be considered when considering the reasonableness of internal relocation. Mr Christopher Lane who represented the appellant before Judge Parkes settled a skeleton argument and it is unfortunate that Judge Parkes did not appreciate the assistance it provided.
12. In light of the lack of detail in the decision and the error of approach identified, I am unable to infer that Judge Parkes has applied the relevant guidance at any stage or that he has applied the correct legal test of reasonableness.
13. I informed Mr Pipe and Mr Mills of my decision and discussed with them how the decision might be remade. Mr Pipe indicated that he wished to advise the appellant to obtain up to date medical and other evidence so that the next judge could make findings at the date of hearing.
14. Mr Mills agreed that remittal to the First-tier Tribunal would be appropriate, particular if controversial evidence came to light as the appellant prepared for the further hearing. Mr Pipe had indicated that he had concerns that the appellant may have suffered sexual abuse in Afghanistan and if so that added to his case that he is in a very different situation from others of a similar age. Mr Pipe acknowledged that the Home Office might change its reasons for refusal in light of any new matters that are presented in evidence.
15. I decided remittal is the best course of action, bearing in mind the Senior President of Tribunal's practice statement and the issues that will have to be reconsidered. No findings (other than those arising from the concessions given by both parties) can be preserved.
Notice of Decision

The appeal is allowed because the decision and reasons statement of Judge Parkes contains an error of law.

I remit the appeal to the First-tier Tribunal for a hearing afresh. No facts are preserved other than those conceded by the parties.

The remitted appeal can be heard by any judge other than Judge Parkes. Directions for the remitted appeal should be set by the First-tier Tribunal.

Signed Date 17th June 2016

Judge McCarthy
Deputy Upper Tribunal Judge