Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/06097/2013

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 25 November 2016
On 02 December 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

h.a.m.a.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L. Kullar, Solicitor
For the Respondent: Mr D. Mills, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sudan, born on 1 January 1983. On 14 June 2013 a decision was made by the respondent to remove the appellant to Sudan, pursuant to section 10 of the Immigration and Asylum Act 1999, following the rejection of his asylum claim.
2. His appeal against that decision came before First-tier Tribunal Judge Osborne ("the FtJ") on 30 July 2013 following which he allowed the appeal on asylum and human rights grounds (Article 3 of the ECHR). The appeal on humanitarian protection grounds and under Articles 2 and 8 were dismissed. The respondent appealed against the FtJ's decision to allow the appeal and the appeal came before Deputy Upper Tribunal Judge Robertson ("the DUTJ") at a hearing on 14 October 2013. She concluded that the FtJ had erred in law and she set aside his decision, for the decision to be re-made in the Upper Tribunal. It was thought for a time that the appeal was potentially suitable for the giving of country guidance on returns to Sudan, but that did not come to pass. There having been a transfer order (from the DUTJ), the appeal came before me for the re-making of the decision.
3. The DUTJ's decision is included as an annex to this decision, and to which reference should be made for the full reasons for her having found that the FtJ made an error of law. To summarise, she concluded that the FtJ had erred in failing to follow applicable country guidance and in his reliance on country background information which was not adequate to displace the conclusions in the existing country guidance as to risk on return for a failed asylum seeker.
4. The further background to the appeal can be deduced from the preserved findings made by the FtJ. The DUTJ indicated at [22] of her decision that the findings of fact "as to the details of the Appellant's case" are preserved. She went on to say that the findings made by the FtJ at [44]-[65] and [69] are to be preserved. With one exception I set out those findings as follows:
The appellant assisted members of the village committee in preparing for a visit to the village in May 2008 by one Professor Hassan Al-Turabi in May 2008, a prominent politician who was well-known in the area and who came from the same village as the appellant.
At the time, the appellant had been living in the village where the meeting took place and he had been an active participant in the social affairs of the village.
The meeting that Professor Al-Turabi addressed was interrupted by security forces. The appellant was detained for a period of 10 days (and ill-treated). Professor Al-Turabi was not detained at the meeting but had been arrested on other occasions.
Government forces would have had an interest in attempting to eradicate interest in Professor Al-Turabi's party which was in opposition to the government.
The appellant was released with a requirement that he "report" after a period of 15 days. The appellant appears to have been released from detention "with ease".
The fact that the appellant was released conditionally demonstrates that he was unlikely to be of significant interest to the government forces. There is no evidence that he was ever contacted (by the authorities) after he was released to inform him as to when he was required to sign on.
After he was released the authorities had demonstrated no further interest in him. That conclusion is supported by the fact that the appellant had maintained contact with his family "throughout" and knows nothing of any attempt by the authorities to contact him, either because he had failed to report or because they sought to call him back into the armed forces.
The appellant had given a truthful account of his journey from Libya to the UK.
The appellant had told the truth about his experiences in Sudan prior to leaving to go to Libya.
Recall to serve in the armed forces would not amount to persecutory treatment.
It is likely that there is no record of his previous detention.
The appellant never involved himself with any party as an activist. When he attended political meetings at university he always ensured that he "kept out of trouble" by avoiding being caught up in any interference by the State in any such meetings.
5. I said in the previous paragraph that there was one exception to the findings of fact made by the FtJ to be set out. That is a finding at [65] where the FtJ said that he could not be satisfied to the lower standard that the treatment meted out to the appellant during his detention amounted to more than harassment, stating that he was detained only for a relatively short period of time, was released "with ease", and there having been no contact with him by the authorities after his release to inform him when he was to sign on.
6. It is the conclusion to the effect that the treatment of the appellant during his detention amounted only to harassment that causes me concern. At [15] the FtJ set out the appellant's account of his detention. He was blindfolded and taken to the place of detention. The FtJ records that during the 10 days' detention he was "badly treated" by being beaten, having water thrown over him and forced to stay out in the very hot sun. He was interrogated about his political views.
7. That description of how he was treated seems to me to amount to more than mere harassment given the account of being beaten and forced to stay out in the hot sun. I drew the parties' attention to my concern in that respect, without demur from either side.
Submissions
8. Mr Mills relied on the recent country guidance decision of IM and AI (Risks-membership of Beja Tribe, Beja Congress and JEM) Sudan CG [2016] UKUT 00188 in terms of risk on return. Given the preserved findings of the FtJ, to the effect that there was no evidence of any ongoing interest in the appellant by the authorities at the time of the FtJ's decision in 2013, there is no reason to think that the situation would be any different now. IM and AI makes a distinction between those who are detained for a short period and are not at risk of serious harm and those whose contact with the authorities would mean that there would be an ongoing risk of serious harm. The authorities distinguish between those regarded as a real threat and those not.
9. Although the country guidance set out in the headnote to IM and AI does not refer specifically to the risk on return for failed asylum seekers, the body of the decision at [216]-[226] indicates that there would not be a risk on that basis. In particular, it is to be noted that the expert evidence did not suggest such a risk.
10. Ms Kullar submitted that although there are preserved findings, the guidance at [8] of the headnote supports the contention that the appellant would be at risk on return. The appellant could be perceived as a person in opposition to the government. He would be returned on an emergency travel document, although it is true that he would have to demonstrate more than that.
11. His account of his treatment was accepted by the FtJ. He had provided some limited support for Professor Al-Turabi who it is also accepted is from the same village as the appellant. Professor Al-Turabi is known to the authorities as an opposition leader. On his return to Sudan the appellant would be questioned about where he has been and would be required to provide details of his address in Sudan which would reveal that he is from the same village as Professor Al-Turabi. The appellant would also be questioned about his political opinions. He would be connected with a person in opposition to the government. In that regard [227] of IM and AI is relevant.
12. Although there is a distinction between those detained for a short period, what is a 'short period' is not defined. The appellant was detained for a period of 10 days and was ill-treated. At [234] of IM and AI it is said that the overall picture needs to be considered and there are cumulative factors that need to be taken into account.
Conclusions
13. Although at [65] the FtJ characterised the treatment that the appellant was subjected to by the authorities in Sudan as "harassment", and the DUTJ said that the findings in [65] amongst other paragraphs are to be preserved, the DUTJ did not advert directly to the 'harassment' finding. That is a finding of mixed fact and law and it is clear that the DUTJ had intended to confine the preserved findings to the factual findings made by the FtJ. In any event, the nature and extent of the ill-treatment suffered by the appellant on the accepted facts does, it seems to me, amount to persecution rather than mere harassment. As I have indicated, neither party before me suggested to the contrary when I raised the matter at the hearing.
14. Paragraph 339K of the Immigration Rules is relevant in this respect. It provides that:
"The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."
15. The country guidance in IM and AI at [277]-[238] is as follows:
227. There must be evidence known or likely to be known to the Sudanese authorities which implicates the claimant in activity which they are likely to perceive as a potential threat to the regime to the extent that, on return to Khartoum, there is a risk to the claimant that he will be targeted by the authorities. The task of the decision maker is to identify such a person and this requires as comprehensive an assessment as possible about the individual concerned.
228. The evidence draws a clear distinction between those who are arrested, detained for a short period, questioned, probably intimidated, possibly rough handled without having suffered (or being at risk of suffering) serious harm and those who face the much graver risk of serious harm. The distinction does not depend upon the individual being classified, for example, as a teacher or a journalist (relevant as these matters are) but is the result of a finely balanced fact-finding exercise encompassing all the information that can be gleaned about him. The decision maker is required to place the individual in the airport on return or back home in his community and assess how the authorities are likely to react on the strength of the information known to them about him.
229. Distinctions must be drawn between those whose political activity or perceived political activity is not significant or who do not have much influence. Whilst it does not take much for the NISS to open a file, the very fact that so many are identified as potential targets inevitably requires NISS to distinguish between those whom they view as a real threat and those whom they do not.
230. It will not be enough to make out a risk that the authorities' interest will be limited to the extremely common phenomenon of arrest and detention which though intimidating (and designed to be intimidating) does not cross the threshold into persecution.
231. The purpose of the targeting is likely to be obtaining information about the claimant's own activities or the activities of his friends and associates.
232. The evidence establishes the targeting is not random but the result of suspicion based upon information in the authorities' possession, although it may be limited.
233. Caution should be exercised when the claim is based on a single incident. Statistically, a single incident must reduce the likelihood of the Sudanese authorities becoming aware of it or treating the claimant as of significant interest.
234. Where the claim is based on events in Sudan in which the claimant has come to the attention of the authorities, the nature of the claimant's involvement, the likelihood of this being perceived as in opposition to the government, his treatment in detention, the length of detention and any relevant surrounding circumstances and the likelihood of the event or the detention being made the subject of a record are all likely to be material factors.
235. Where the claim is based on events outside Sudan, the evidence of the claimant having come to the attention of Sudanese intelligence is bound to be more difficult to establish. However, it is clear that the Sudanese authorities place reliance upon information-gathering about the activities of members of the diaspora which includes covert surveillance. The nature and extent of the claimant's activities, when and where, will inform the decision maker when he comes to decide whether it is likely those activities will attract the attention of the authorities, bearing in mind the likelihood that the authorities will have to distinguish amongst a potentially large group of individuals between those who merit being targeted and those that do not.
236. The decision maker must seek to build up as comprehensive a picture as possible of the claimant taking into account all relevant material including that which may not have been established even to the lower standard of proof.
237. Once a composite assessment of the evidence has been made, it will be for the decision maker to determine whether there is a real risk that the claimant will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention but meets the threshold of a real risk of serious harm.
238. Where a claimant has not been believed in all or part of his evidence, the decision maker will have to assess how this impacts on the requirement to establish that a Convention claim has been made out. He will not have the comprehensive, composite picture he would otherwise have had. There are likely to be shortfalls in the evidence that the decision maker is unable to speculate upon. The final analysis will remain the same: has the claimant established there is a real risk that he, the claimant, will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention and release but meets the threshold of serious harm."
16. Strictly speaking, the country guidance is that to be found in the body of the Upper Tribunal's decision, rather than that in the headnote. The reason I mention that fact is because I note that at [227] it states that "There must be evidence known or likely to be known" to the Sudanese authorities which implicates the claimant in activity etc. (my emphasis), whereas in the headnote it states that "there must be evidence known to the Sudanese authorities etc., (my emphasis again). The difference is the phrase "or likely to be known". The distinction is probably immaterial, and is so on the facts of this appeal, but it is necessary to consider the actual guidance as set out in the decision. In addition, for "likely to be known" I would read 'reasonably likely to be known', but again nothing turns on that in this appeal.
17. Although the country guidance in that decision does not strictly consider the issue of returned failed asylum seekers per se, it is a matter that is considered in the decision. Between [216] and [226] the position was considered with reference to the earlier country guidance decision of HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062. In IM and AI the Tribunal said at [218] that as long ago as 2005, Dr Alizadeh of the UNCHR commented that failed asylum seekers would not face severe problems upon return, as long as they are not recognised as a threat to the state, and that that was the conclusion of the Tribunal in HGMO. At [220] it was noted that in HGMO the Tribunal concluded that neither involuntary returnees nor failed asylum seekers, nor persons of military age (including draft evaders and deserters) "were as such at real risk on return to Khartoum".
18. At [222] it was stated that it was not argued that involuntary returnees would be at risk on return for that reason alone, and the expert evidence of Peter Verney did not suggest as much. After further consideration of the evidence before it the Tribunal said at [225] that:
"It is our firm view conclusion that a failed asylum seeker, including an individual who has been subject to investigation by the immigration authorities on return, would not be at risk of further investigation by NISS [National Intelligence and Security Services] on that basis alone."
At [226] it was also said that:
"The response made by Waging Peace to the Landinfo report repeats its stance that Sudanese from all parts of society?who have spent time outside Sudan may be at risk on return?but we are not satisfied that this supports a claim that all those who return as failed asylum seekers are at risk. We accept that our assessment is hampered by a lack of monitoring from UNHCR or from countries that return failed asylum seekers to Sudan. However, we are satisfied that the approach adopted by the Tribunal in HGMO (Relocation to Khartoum) to the effect that even without monitoring, news leaks out if there had been widespread ill-treatment of involuntary returnees. Indeed, the persons interviewed by Waging Peace afford good examples of how individuals are able to describe their experiences and how those experiences find their way into the public domain."
19. Although before the FtJ the appellant had relied on a report from Waging Peace dated 4 August 2011, which led the FtJ to allow the appeal, that report was expressly not relied on before me. Furthermore, as I pointed out to the parties, that report itself relied on information from a UNHCR report of 2008, and there were other reasons to conclude that the report was not a reliable indicator of the risk to the appellant on return.
20. I have considered the guidance in IM and AI in detail. It is apparent that the appellant would not be at risk on return purely on the basis that he is a failed asylum seeker.
21. The FtJ concluded that he had given a credible account of his activities in Sudan, the circumstances of his detention and the ill-treatment that he received. The appellant was not a political activist and his political activities were such that he kept himself out of trouble. He was detained for 10 days and ill-treated. More important than deciding what the Tribunal in IM and AI meant when it referred at [228] to a "short period" of detention, is the fact that the appellant was released without further consequence. The period of detention is not determinative, although in relative terms the 10 days' detention was a short period. Although the FtJ found that he was required to report, there was no follow-up, as it were. The FtJ concluded that he was not of significant interest to the authorities on his release, and of no further interest after his release. It was also found that it was not likely that there would be a record of his detention.
22. Ms Kullar contended that there would be a risk to the appellant because of his coming from the same village as Professor Al-Turabi, a known opposition activist. However, in answer to the question as to whether it could be said that anyone coming from the same village would be at risk, reliance was placed on the fact of the appellant's detention. It was also said that he would be questioned about his activities in the UK but it was conceded that there was no evidence of any political activities in the UK.
23. The plain fact is that the appellant was not regarded as of any adverse interest to the authorities when he was released from detention or subsequently. There is no basis therefore, from which to conclude that he would be seen as a threat or potential threat to the regime. The appellant would not be targeted as a result of his activities or those of his friends or associates. There are no such activities or associates that would be of interest.
24. Although the appellant comes from the same village as Professor Al-Turabi, that cannot be said to create a real risk of persecution or Article 3 harm because that was a matter that was known about when he was in Sudan; at the time of his release and afterwards. It did not create a risk to him then, and there is no basis from which to conclude that it would create a risk to him on return now, there having been no evidence of adverse interest in him by the authorities since his release.
25. There is not even likely to be a record of his having been detained, so the FtJ found. Even if there is, and even if that is discovered on his return, there is no reason to suppose that that alone, or in combination with the other circumstances of the appellant's background, would create a risk to him now.
26. Although the appellant was subject to treatment which I would conclude amounted to persecution, the evidence indicates that there are good reasons to consider that such treatment will not be repeated.
27. Accordingly, I am not satisfied that the appellant has established to the required lower standard that there is a real risk of persecution or Article 3 ill-treatment on return to Sudan.
Decision
28. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I re-make the decision, dismissing the appeal on asylum and Article 3 grounds.

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 his 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.

Upper Tribunal Judge Kopieczek 2/12/16

ANNEX-ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06097/2013

THE IMMIGRATION ACTS

Heard at Sheldon Court, Birmingham
Determination Promulgated
On 14 October 2013

Prepared on 15 October 2013
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Before

DEPUTY UPPER TRIBUNAL JUDGE ROBERTSON

Between

H A M A
ANONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Authi, solicitor from Aman, Solicitors.
For the Respondent: Mr N Smart, Presenting Officer.

DETERMINATION AND REASONS
Procedural History
1. For ease of reference the Appellant and Respondent are hereafter referred to as they were before the First-tier Tribunal. Therefore HAMA is referred to as the Appellant and the Secretary of State is referred to as the Respondent.
2. The Appellant, a national of Sudan, whose date of birth is 1 January 1983, appealed against the decision of the Respondent to set removal directions to Sudan after refusing refugee status, humanitarian protection and leave to remain in the UK on human rights grounds. First-tier Tribunal Judge V S Osborne allowed his appeal on all grounds and the Respondent appeals against this determination. Unless otherwise stated, all paragraph references in my determination relate to the determination of Judge Osborne.
3. Permission to appeal was requested by the Respondent on the basis that:
a. The Judge materially misdirected herself in law by misinterpreting the evidence before her; she concluded that the Country of Origin Information Report on Sudan dated September 2012 (the COIS report) raised sufficient concerns to find that the Appellant may be apprehended as someone who claimed asylum in the UK and therefore should be granted refugee status. However, the evidence in the COIS report that is referred to by the Judge was sourced between 2006 - 2010 and was no more current than the evidence considered in the Country Guidance cases. The Judge found that the Appellant is not someone who has a political profile and the authorities had shown no interest in him since his release from detention or departure to the UK. There was no evidence before the Judge to demonstrate that all failed asylum seekers were at risk on return and it was unreasonable for her to so conclude; and
b. In HMGO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, the Tribunal found that involuntary returnees, failed asylum seekers and persons of military age were not at real risk on return to Khartoum. The Judge acknowledged but failed to adhere to the guidance in HMGO and did not give adequate reasons for not so doing.
4. Permission was granted on the basis that the Judge had arguably not followed the guidance in the case law because she allowed the appeal even after she found that, although the Appellant's account was credible, the authorities in Sudan had no interest in him after they released him and that he was not at risk at the time he left Sudan.
5. A Rule 24 response was not filed by the Appellant.
The Hearing
6. Mr Smart handed up AA (Non-Arab Darfuris - location) Sudan CG [2009] 00056, extracts from HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, SG (Iraq) v SSHD [2012] EWCA Civ 940, DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 (IAC); extracts from the COIS report (paragraphs 29.02 - 30.17 and 31.23 - 32.17 and the Chronology of Major Events), a document dated 27 August 2013 subheaded "Treatment of returnees to Sudan (from European countries including the UK)" to which is annexed a letter from the British Embassy in Khartoum dated 8 April 2013 (the British Embassy letter), the latter document for the purposes of remaking the decision only rather than establishing the error of law.
7. In his submissions, Mr Smart relied on the grounds of application, stating that although AA made changes to the risk categories so that much of HMGO was no longer applicable, some of the guidance in HMGO was retained. HMGO related to four black Africans from Darfur; they were non-Arab Darfuris. AA left in place paragraphs 2 and 6 of the head note to HMGO and paragraph 2 of the head note was relevant to the Appellant's case. At paragraph 172 of HMGO, the Tribunal stated that they were forced to deal with the issue of whether involuntary returnees to Sudan would be at risk, not just non-Arab Darfuris, which they considered at paragraphs 173 to 186. They concluded, at paragraph 309 (2) that "A Sudanese national will not be at risk on return to Khartoum either at the airport or subsequently merely because he or she is a failed asylum seeker. Although the fact of having claimed asylum (and having spent time in the UK) is likely to be known to the Sudanese authorities there, the evidence does not suffice to show that this would make him or her the subject of adverse attention."
8. In SG, at paragraphs 45 - 47, the Court of Appeal considered the benefits of the system of Country Guidance determinations to provide reliable information about country conditions, and confirmed that judges were required to follow them "?unless very strong grounds, supported by cogent evidence, are adduced justifying their not doing so" (paragraph 47). In DSG, the Tribunal, at paragraph 20, set out the basis for the Country Guidance system, to be found within the Practice Directions at 12.2 - 12.4, which provides that "Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law" (paragraph 12.4) At paragraph 26 of DSG, it is stated that "?a judge may depart from existing country guidance in the circumstances described in the Practice Direction and the Chamber Guidance note. That does not amount to carte blanche for judges to depart from country guidance as it is necessary, in the wording of the Practice Direction to show why it does not apply to the case in question?" Mr Smart submitted that in DSG, the First-tier Tribunal Judge was found to be right in departing from country guidance on the evidence before him but this did not detract from the need for strong grounds supported by cogent evidence.
9. As to the application of the country guidance to the Appellant's case, Mr Smart submitted that at paragraph 32 of the determination the Judge quoted an extract from the COIS report which was set out at paragraph 28 of the reasons for refusal letter. She gave her reasons for rejecting it at paragraph 69 but she did not engage with the Secretary of State's position in relation to it; she did not engage with HMGO or consider the provenance of the Waging Peace report. That failure amounted to an error in law. Mr Smart submitted that the British Embassy letter confirmed that there were no reports of mistreatment of returnees, which would assist in the remaking of the decision in the event that a material error of law was established.
10. Mr Authi submitted that looking at the documentary evidence, it was clear that the Judge conducted a good balancing exercise on the evidence before her. At paragraph 65 she stated that the Appellant was credible. At paragraph 68, she had in the back of her mind that the Appellant would be someone who was of interest to the Sudanese authorities. She referred to the risk factors that would put the Appellant at risk on return at paragraph 69; she carried out a balancing exercise on the basis that he was known to the authorities.
11. Mr Authi submitted that although it was stated within the grant of permission that the Judge did not appear to have considered existing case law, she stated that she had considered it and found that it was a number of years old and she balanced the country guidance case against the Waging Peace report. She dealt with the risk to Sudanese nationals who are returned. She stated that there was no report of failed asylum seekers from the UK being reintegrated into Sudanese society as a result of the re-integration programmes that are in place between the Sudanese government and the governments of neighbouring countries because there was no such agreement between the Sudanese authorities and the UK.
12. With reference to paragraph 203 of HMGO, Mr Authi submitted that the Appellant's background would be known to the authorities because the Judge accepted that his account is credible and that he was detained. The COIS report confirmed, at para 32.02, that the security organisations are powerful and that they have records of those they deem to be of interest. The Judge made a thorough examination with regard to the issue of risk on return on the evidence as a whole.
13. As to DGS, Mr Authi submitted that the Judge in that case did depart from country guidance in the particular circumstances of the case. In the Appellant's case, the Judge considered the Appellant's background, and at paragraphs 68 - 69 she stated why she departed from the country guidance cases - she stated that they were out of date. He asked that I find that there was no error of law.
14. I referred Mr Smart to paragraph 7 of the grounds, in which it was stated that the evidence within the COIS report that was referred to by the Judge was sourced between 2006 and 2010 and was no more current than the country guidance cases and I asked him if there was evidence to confirm that the evidence on which the Waging Peace report was based was before the Tribunal in HMGO. He stated that he was not relying on paragraphs 6 and 7 of the grounds of application.
15. Both representatives agreed that if I were to find that there was a material error of law in the findings of the Judge, there was sufficient material before me on which to make a decision without the need for a resumed hearing.
Decision and reasons
16. I do not accept Mr Authi's submission that the Judge had in the back of her mind that the Appellant was known to the authorities because she found his account of having been detained credible. This is an Appellant who claimed that he had left Sudan in May 2008 and spent five years in Libya before arriving in the UK on 17 May 2013. The Judge stated:
"(the Appellant) was detained for a relatively short period of time, he appears to have been released with ease and there is no evidence before me that the Appellant was ever contacted after he had been released to inform him as to when he was required to sign on with the authorities. This indicates to me that after the Appellant had been released the authorities had demonstrated no further interest in him. I am supported in this finding by the fact that I am satisfied that the Appellant has maintained contact with his family throughout and knows nothing of any attempt by the authorities to contact him either because he failed to report as ordered or because they sought to call him back into the armed forces. In any event I am not satisfied that calling him back into the armed forces would amount to persecutory treatment - all young men like the Appellant are required to undertake military training which the Appellant did and the Appellant's fear was that the authorities in Sudan would use this as "punishment" against him for having left the country. Even if that were to be the case I am not satisfied that it would amount to persecutory treatment" (para 65).
17. At paragraph 69 the Judge finds that there would be no record of his previous detention. There was no evidence before the Judge that the Appellant was ever politically active, either in Sudan or abroad.
18. She then identifies the real cause for concern as being the risk on return. She cites the extract from the Waging Peace report, which is dated 4 August 2011, at paragraph 32 of the determination, which provides:
"Returning Sudanese asylum seekers from the UK to Sudan in and of itself constitutes a significant risk to their safety at the hands of the National Intelligence Service (NISS), and in the worst instances can result in death. Claiming asylum abroad is considered an act of regime defiance and as such the process of applying for documentation brings an individual to the attention of the NISS. Furthermore, the NISS uses information gathered through an advanced security service network to incriminate detainees, making the risk of imprisonment for failed UK asylum seekers high. Detainees are then held without warrant, record, trial or representation, often severely tortured and their lives threatened, in prison conditions that are unacceptable. They are sometimes released only on the basis that they gather information on rebel activity and return to the NISS to be detained should they not provide "satisfactory" answers. With this in mind, returning a Sudanese asylum seeker from the UK can, in the worst cases, amount to sending them to their death and even in more favourable cases, constitute a considerable threat to their safety and wellbeing."
19. The Respondent, in the reasons for refusal letter, states that: "...while it is noted that there have been individual reports of failed asylum seekers being mistreated in Sudan, it is noted that these reports lack breadth and depth. It is also noted that various other organisations are continuing to run voluntary returns to Sudan and have not reported any findings similar to those outlined above."
20. The Judge refers to the Waging Peace report in her reasons for departing from HMGO which are set out in paragraphs 68 and 68. She states:
"The fact that the country of origin information service report has included that description in its report is something that I cannot ignore. Equally I must take into account the fact that a return programme has been implemented with the Sudanese government working in cooperation with governments of selected neighbouring countries however I note that there is no report of failed asylum seekers from the United Kingdom being reintegrated into Sudanese society as a result of these programmes. Specific reference is made to returns from Uganda. I am satisfied that it would be known to the authorities in Sudan that the Appellant was returning from the United Kingdom.
"According to the Waging Peace report the risk to the Appellant is therefore a high one. My attention was not drawn to any relevant country guidance case which has considered the issue of returnees from the United Kingdom to Sudan. I have personally considered the existing country guidance cases - they do not support the view of Waging Peace but I take into account the fact that the country guidance cases which remain are now quite old and may not reflect current country guidance conditions. My overall conclusion therefore is that to return the Appellant to Sudan from the United Kingdom would be dangerous. He would be at risk of persecutory treatment even if there was no record of this previous detention which I find is likely to be the case."
21. However, there is no reference within the Waging Peace report to the methodology used or the sources of the evidence used to reach the conclusions set out in the extract cited by the Judge. There is no reference to the number of cases, how these were documented or whether there was a breakdown in relation to the ethnicity of the Sudanese nationals referred to, a factor that would have been relevant if it was to lead to a departure from the conclusions of the Tribunal in HGMO in relation to return from the UK of failed asylum seekers of Arab ethnicity. In the circumstances, I find that the reasons given for departure from HMGO, which are really no more than that the country guidance cases are old, were insufficient to depart from the conclusions of that country guidance case. This is a material error of law, and I set aside the decision in relation to application of country guidance to the facts.
22. The findings of fact as to the details of the Appellant's case are preserved; no issue was raised in relation to them by either party and the findings were open to the Judge on the evidence before her.
23. The promulgation of this determination has been delayed for some time, pending a decision as to whether this case is to be identified as a potential country guidance case. The parties will be contacted when a decision is made with a view to arranging a resumed hearing. If it is not to be listed as a country guidance case, the parties will still be contacted for a decision as to whether, given the passage of time, a resumed hearing is necessary.

Decision
24. The findings of the Judge at paragraphs 44 - 65 are preserved, as is the finding at paragraph 69 that there is unlikely to be any record of the Appellant's previous detention.
25. The Judge materially erred in law in failing to provide adequate reasons for departing from the guidance case HMGO. The decision is set aside.

Anonymity
26. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and immigration Tribunal (Procedure) Rules 2005 and I see no reason why an order should be made pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date

M Robertson
Deputy Judge of the Upper Tribunal