Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/06944/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th July 2016
On 2nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Hn
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Sellwood, Counsel; instructed by Rashid & Rashid Solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Hussain dismissing the Appellant's appeal against the Respondent's decision to refuse to grant asylum and remove him by way of directions and to refuse to grant leave to remain on the basis of his human rights. The Appellant appealed against the decision of Judge Hussain and was granted permission to appeal by Designated First-tier Tribunal Judge Macdonald. The grounds upon which permission was granted may be summarised as follows.
"It has to be said that the judge's findings on the asylum claim are very limited. It does appear that the evidence of Ms Drammeh has been ignored. I doubt there is merit under Ground 3 but there is no explanation for the delay in promulgation under Ground 4. The judge set out clear reasons why he was not granting the appeal under Article 8 ECHR. Nevertheless it appears that there are arguable errors of law in the decision particularly under Grounds 1 and 2 and for the sake of clarity permission to appeal is granted on all grounds."
2. The Respondent provided a Rule 24 reply that was duly considered by all parties before the hearing commenced.
Error of Law
3. At the close of submissions I indicated I would reserve my decision which I shall now give. I find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.
4. In relation to Ground 1 and the allegation that the judge arguably erred in failing to make findings of fact on material matters. I accept the grounds as pleaded that Judge Hussain has taken account of the previous decision of the Upper Tribunal (namely the decision of Deputy Upper Tribunal Judge Drabu of 6 December 2011) as a starting point; however, in so doing the judge has not given consideration to facts accepted by the Upper Tribunal, namely that:
"(i) the Appellant's claim was consistent with the objective evidence in that the Taliban regularly engage in activities of this kind;
(ii) there was an express statement from the Taliban that they would be coming back for the Appellant; and
(iii) the Appellant's father was assaulted by the Taliban by being hit with a rifle butt."
5. Given those accepted facts alongside the other agreed facts, namely that the Appellant's village is in an area controlled by the Taliban, that he left Afghanistan when he was aged 14 and has never lived alone in Afghanistan; these facts cumulatively considered formed bases which should have been the starting point for Judge Hussain's assessment of the evidence pursuant to the decision in Devaseelan v SSHD [2002] UKIAT 00282. Consequently I find that the judge erred in failing to make findings of fact pursuant to the agreed and accepted starting point.
6. In respect of Ground 2 and the allegation that the judge arguably erred in failing to take into account the evidence of Ms Drammeh, in harmony with Designated First-tier Tribunal Judge Macdonald in granting permission, I find that the evidence of Ms Drammeh has been ignored. This is clearly so because whilst Ms Drammeh's evidence is mentioned at paragraphs 16 to 17 there are no findings based upon her witness evidence in paragraphs 19 to 22 where the judge has considered the Appellant's protection claim. Consequently, even though her evidence is that of a third party and potentially of limited weight, that does not negate the duty of a judge to consider and make findings upon witness evidence at a hearing.
7. In respect of Ground 3, I do not find that there was an error in terms of the Article 15C Qualification Directive Assessment. The level of indiscriminate violence against the background information for Nangarhar Province has not been sufficiently set out that I can see a clear error of law in the judge's decision.
8. In respect of Ground 4, previous counsel who drafted the Grounds of Appeal relied upon the decision of Sambasivam v Secretary of State for the Home Department [1999] All ER(D) 1168, in particular paragraphs 16 to 17 where Potter, LJ stated as follows:
16. In my view the decision in Mario was no more and no less than a useful statement of guidance to practitioners upon the usual attitude and likely decision of the IAT in a case where an issue essential to the disposition of the claim for asylum depends upon a careful weighing of the credibility of the applicant and yet it appears that the delay between the hearing date and the preparation of the determination exceeds three months. In the absence of special or particular circumstances, that is plainly a useful and proper rule of thumb which in the experience of the Tribunal, it is broadly just to apply, for the twin reasons that substantial delay between hearing and preparation of the determination renders the assessment of credibility issues unsafe, and that such a delay tends to undermine the loser's confidence in the correctness of the decision once delivered (para 16)...
17. In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, a delay of over three months between hearing and determination will merit remittance for re-hearing unless, by reason of particular circumstances, it is clear that the eventual outcome of the application, whether by the same or a different route, must be the same (para 17).
9. Given that the appeal was heard on 2nd December 2015 but the determination was not promulgated until 9th May 2016 there was a clear delay of five months between the hearing and the promulgation of the determination. No special or particular circumstances have been highlighted as to why there was such an unusually long delay in promulgation of the First-tier Tribunal's determination. However that delay coupled with the paucity of reasoning in the First-tier Tribunal's determination at paragraphs 19 to 22 does in my view constitute an error of law.
10. In those circumstances I find there was an error of law in the decision such that it should be set aside.
11. In light of my findings on the above grounds of complaint, I do not propose to consider the remaining grounds. I set aside the decision and findings of the First-tier Tribunal in their entirety.
Decision
12. The appeal to the Upper Tribunal is allowed.
13. The decision in the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal to be heard by a differently-constituted bench.

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

Deputy Upper Tribunal Judge Saini