AA/06221/2015

• Status of case: Unreported
• Hearing date: 4 Apr 2017
• Promulgation date: 24 Apr 2017
• Publication date: 14 Jun 2022
• Last updated on: 14 Jun 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06221/2015


THE IMMIGRATION ACTS


Heard at Bradford
Decision & Reasons Promulgated
On 4 April 2017
On 24 April 2017



Before

UPPER TRIBUNAL JUDGE CLIVE LANE


Between

Md Khaled AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Read
For the Respondent: Mrs Pettersen


DECISION AND REASONS
1. The appellant claims to have been born on 10 November 1989 and is a male citizen of Bangladesh. By a decision dated 1 April 2015, the respondent refused the appellant’s application for asylum and made directions for his removal to Bangladesh. The appellant had claimed asylum on the basis that he is homosexual. The appellant appealed to the First-tier Tribunal (Judge M J H Wilson) which, in a decision promulgated on 28 November 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. I find that, notwithstanding the otherwise detailed and thorough analysis of Judge Wilson, his decision must be set aside. There is one reason for doing so. Judge Wilson had placed reliance upon findings by a judge in a previous appeal involving the same appellant (Judge O’Garro). At [19], Judge Wilson stated that he would take “Judge O’Garro’s decision as my starting point this in accordance with the principles set down in Devaseelan [2002] UKIAT 007021.” On 6 October 2015, Judge O’Garro’s decision had been set aside by an order of the President of the First-tier Tribunal. That order had been issued because Judge O’Garro’s decision had been issued under the Detained Fast Track Procedure (DFT). The President had set aside a number of decisions following the judgment of the Court of Appeal in Detention Action [2015] EWCA Civ 840. Plainly, Judge Wilson should not have adopted findings or used as a starting point a decision which had been set aside in its entirety before he heard the appellant’s appeal. It was not clear to me why Judge Wilson had not noticed that Judge O’Garro’s decision had been set aside; the order setting aside the decision is contained in the file of papers which was before the First-tier Tribunal. Whatever the reason, Judge Wilson’s decision cannot in the circumstances stand.
Notice of Decision
3. The decision of the First-tier Tribunal which was promulgated on 28 November 2016 is set aside. The appeal is returned to the First-tier Tribunal (not Judges M J H Wilson and O’Garro) for that Tribunal to remake the decision.
4. No anonymity direction is made.



Signed Date 20 April 2017

Upper Tribunal Judge Clive Lane