Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06891/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 June 2013

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

MAHMUT YILMAZ
Appellant
and

SECRETARY OF STATE
Respondent

Representation
For the appellant: Mr D Nelson-Iye, Legal Representative
For the respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Background

1. This appeal comes before me following the grant of permission to appeal to the appellant by Upper Tribunal Judge McGeachy on 10 April 2013 in respect of the determination of First-tier Tribunal Judge Bart-Stewart promulgated on 13 February 2013.

2. The appellant is a Turkish national born on 25 May 1972. He claims to have arrived here illegally on 17 October 2011 and claimed asylum on 19 October. He is of Kurdish ethnicity from Genc in Bingol. He lived with his family and completed his military service in 1995. The area in which he lived was a mountainous area in a strategic location for the PKK and the authorities. The appellant’s family resisted pressure to become informers and as a result the appellant claimed to have been persecuted. His application was rejected by the respondent on 9 July 2012 and directions for his removal were given.

3. The appellant’s complaint is that the judge did not give due weight to the report from the Medical Foundation which detailed his scarring and diagnosed PTSD, that she did not refer at all to the background material and that she gave inadequate reasons for her adverse credibility findings.

4. The appellant attended the hearing and was legally represented. I heard submissions from Mr Nelson-Iye who expanded upon the grounds and from Mr Tarlow who submitted that the judge’s determination was sustainable. At the conclusion of the hearing I reserved my determination which I now give.

5. Having considered the appellant’s challenge, the grounds, the submissions, the determination and the medical report, I agree with Mr Nelson-Iye that the judge erred in her approach to the medical evidence. Whilst it is a matter for the judge as to the weight a piece of evidence should be given, in view of the extensive scarring documented I would have expected the judge to have engaged more with the report before rejecting its conclusion that the appellant was a victim of torture. I accept that the judge did address the discrepancies arising from the report as regards certain dates however as submitted by Mr Nelson-Iye, that still leaves the matter of the scarring and the diagnosis of PTSD. The judge was also criticised for failing to make findings in the context of the background material. I note that the background evidence is listed at paragraph 3 but there is no assessment of how that evidence assists or does not assist the appellant or how it affects the analysis of his claim. That too, is an error of law. The final ground is a reasons challenge. The judge did provide some reasons for her adverse findings and had the other difficulties with the determination not arisen, her reasoning may have been adequate. In the circumstances, however, and where an earlier determination (made by First-tier Tribunal Judge Paul) had been set aside, I would have hoped for particularly careful consideration of all the evidence.

6. For all these reasons I find that the judge made errors of law and the determination is set aside. The decision will be remade at a hearing before the First-tier Tribunal on all grounds. No findings are to be preserved.

Decision

7. The First-tier Tribunal made errors of law such that the determination is set aside. The appeal is remitted to the First-tier Tribunal for rehearing on all issues.

Directions

8. The appellant is directed to serve on the Tribunal and the respondent a paginated and indexed bundle of all documents relied upon served no later than 7 working days prior to the next hearing.

Signed:

Dr R Kekić
Upper Tribunal Judge
13 June 2013