Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05783/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 September 2016
On 28 October 2016

Before

UPPER TRIBUNAL JUDGE H H STOREY

Between

U K
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr B Brindock, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr S Tufan, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. The appellant is a national of Malawi. She obtained permission to appeal against the decision of First-tier Tribunal Judge S Taylor dated 27 May 2016 dismissing her appeal against a decision made by the respondent on 23 March 2015 refusing to grant asylum or humanitarian protection.

2. The appellant advanced five grounds. It is unnecessary to address them all because I am quite satisfied that ground 3 identifies a material error of law in the form of a failure by the judge to take into account or make any reasoned findings about the report by Dr Kilgore (formerly Aguilar) dated 12 May 2016.

3. This report does appear to my mind to have shortcomings as an expert report, including failure to engage with the findings of fact made by the previous Tribunal who dealt with the appeal of the appellant's husband and a failure to engage with the respondent's Reasons for Refusal Letter. However, as Mr Tufan conceded, it is not possible to say that this report has no potential bearing on the material facts of the appellant's case and it should have been addressed by the judge. The judge's failure to do so constituted a material error of law necessitating that I set aside his decision. The nature of the judge's error is such that none of the judge's findings of fact can be preserved and there will need to be a de novo hearing, most appropriately achieved by way of remittal to a First-tier Tribunal Judge other than S Taylor.

4. Whilst the evidence will be entirely a matter for the next First-tier Tribunal Judge to assess, it may assist, in view of the fact that the appellant and her husband have been concerned in a previous Tribunal hearing and the case is yet again going before the First-tier Tribunal, if I clarify the following matters:

1) Applying Devaseelan principles, the judge will be entitled to treat the previous findings of fact in the husband's appeal as a start point.

2) It will not be an error of law for the judge to weigh in the balance the findings of fact made by the Tribunal who dealt with the husband's appeal when assessing the value and significance of the medical evidence and of the witness evidence from the sister-in-law.

3) To the extent that the appellant seeks to rely in this appeal on a claim to past persecution (rape whilst a minor involved in initiation rights), she will need to explain why she did not make this claim earlier than she did.

4) Although no findings of fact made by Judge S Taylor are preserved, the parties agreed before me that it was not in dispute that:

(i) The appellant's home area of Soche was either in or close to Blantyre which is the second largest city in Malawi which is a large urbanised city with nearly 2 million people;

(ii) She and her husband met in Soche, when the appellant was living with her uncle.

It is also uncontroversial that:

(iii) The appellant came to the UK on a student visa and claimed to have pursued studies in business management.

(iv) The appellant's husband previously had a student visa to study computer science and went to boarding school in Soche.

These facts may be of relevance when assessing the claim made by the appellant that she and her husband could not be expected to return to Malawi and live in Soche.

5. For the above reasons:

The judge materially erred in law and is decision is set aside.

The case is remitted to the First-tier Tribunal before a judge (or judges) other than S Taylor and Judge Talbot.

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: 8 September 2016

Dr H H Storey
Judge of the Upper Tribunal