The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06951/2013


Heard at Columbus House, Newport
Determination Sent
On 28 November 2013
On 23rd December 2013


upper tribunal judge POOLE


mr S S


For the Appellant: Mr G Lee of Counsel instructed by Malik & Malik
For the Respondent: Mr Irwin Richards, Home Office Presenting Officer

1. The appellant is a citizen of Afghanistan who arrived in the United Kingdom on 12 November 2012 claiming asylum later that month. He travelled with his wife and daughter who are dependants upon his claim.
2. Mr Lee (who now appears) represented the appellant in his appeal against the respondent’s refusal when it came before Judge of the First-tier Tribunal Whiting on 22 August 2013.
3. In a determination dated 30 August 2013 Judge Whiting dismissed the appellant’s appeal on all grounds. At paragraph 64 of his determination Judge Whiting found the appellant’s evidence not to be credible and in reaching those conclusions took into account, at paragraphs 37, 38 and 39, details taken in respect of the appeals of the appellant’s parents that had already been dismissed.
4. In paragraphs 2 to 7 of the determination Judge Whiting deals with matters noted as “preliminary issues”. For reasons set out in those paragraphs Judge Whiting decided to take into account information taken from the appeals of the appellant’s parents and the interview record of the appellant’s brother who was granted asylum by the respondent upon application.
5. The appellant sought leave to appeal alleging error on two grounds. Firstly in the way Judge Whiting dealt with the evidence of the appellant’s parents given at their own appeals which, as alleged by the grounds, was “impermissible” by reference to the case of MJ (Iran) v SSHD [2008] EWCA Civ 564. Secondly, error was alleged on the part of the judge in how the judge dealt with country guidance by reason of the case of DSG and Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148. An amplification of this second point being that the judge (at paragraph 45 of the determination) considered that the Upper Tribunal in DSG had approved the findings of the previous country guidance case, whereas in fact the Upper Tribunal had found that the judge in the case before them had been justified in departing from country guidance.
6. The application for leave came before another Judge of the First-tier Tribunal who granted leave in a decision dated 4 October 2013. In indicating that all grounds were arguable, that judge at paragraph 2 of his decision said as follows:
“2. The judge concluded that the material he had before him did not justify him departing from country guidance, but it is arguable as submitted at ground 2 that the judge was influenced by the way he approached the case of DSG & Others [2013] UKUT 00148. The Upper Tribunal in that case did not (contrary to what the judge wrote at paragraph 45 of the determination) approve the findings of the previous country guidance case but rather considered that in the case before them the judge had been justified in departing from country guidance and they noted there were clear implications for other cases between that time and the time that further country guidance could be issued. It appears from the grounds that the judge may not have engaged with all the material put forward and it is arguable that the judge’s error was material in that he may not have dealt with the detailed arguments because he considered that country guidance findings had recently been approved.”
7. The judge granting leave indicated he was puzzled by the first of the two grounds as he noted that Mr Lee of Counsel had drafted the grounds but, according to paragraph 3 of Judge Whiting’s determination had indicated that he could not object to the course of action proposed with regard to the parents’ appeals. However, as indicated above, leave was granted on all grounds and hence the matter now comes before me in the Upper Tribunal.
8. Following the grant of leave the respondent submitted a letter dated 4 November 2013 representing the respondent’s response under rule 24. The appeal was opposed, initially in general terms, then indicating that the judge had not erred in his treatment of the appellant’s oral and written evidence and contended that the judge was not influenced by the outcomes of the parents’ appeals.
9. In his submissions to me Mr Lee relied upon the grounds. He went on to explain the apparent difficulty he might have faced with regard to ground 1. He explained that his intention at the original hearing was to have available the interview record of the appellant’s brother and in doing so he realised the issue regarding the parents’ appeals but made lengthy submissions before the judge that no adverse credibility finding should be drawn from the parents’ appeal. He referred me in detail to the decision in MJ (Iran) and in particular to paragraphs 15 to 18. As a result, he said, the way the judge dealt with those preliminary issues was “impermissible”. Therefore it was not open for the judge to find against the appellant as he does at paragraphs 37 through to 39.
10. As to ground number 2, Mr Lee referred to the original application for leave. The judge had erred in finding approval in the case of DSG and as a result could not have dealt with the background evidence in the appropriate manner. Mr Lee then referred to a third ground contained in the application but not dealt with in the leave decision. The judge had apparently left out of account evidence adduced before him with regard to the levels of discrimination faced by Sikh children in Afghanistan.
11. In response Mr Richards submitted that the judge had properly dealt with the preliminary issue regarding the parents and brother. The judge’s findings were merely a factor and not conclusive to his eventual findings. Therefore there would be no error of law. As to the second ground, the judge had correctly directed himself. The appellant is not believed in his own account. He had not been subjected to past persecution and the judge was entitled to find that he was not at risk.
12. As to the third ground, Mr Richards submitted that the judge had fully considered the best interests of the child, it is a question of more than mere education and all relevant matters had to be taken into account.
13. I then reserved my decision on the application which I now give with reasons.
14. The determination of Judge Whiting is an impressive piece of work. It is with some degree of regret that I find I have to conclude that his findings and decision must be set aside.
15. Through no fault of his own, the judge fell into error in the way that he dealt with the aspect contained in the early part of the determination under the heading “preliminary issues”. I say through no fault of his own because he may well have unwittingly misunderstood the submissions made by Mr Lee. Both the judge and Mr Lee were faced with what I believe to be a fairly unusual situation. The appellant’s parents had applied for asylum, had that application rejected and their subsequent appeals dismissed. The appellant’s brother on the other hand had his application accepted by the respondent and he was granted protection. As far as I can see all four cases involve identical or broadly identical facts. Mr Lee clearly was faced with the difficult task of wishing to advance the benefits of the brother without bringing into play the potentially difficult situation regarding the parents. Without criticising either Mr Lee or Judge Whiting, I am of the view that between them the impression was formed by the judge that Mr Lee was not putting forward any objection to the introduction of the previous determination. I note the middle part of paragraph 3 of the determination of Judge Whiting. With that in mind I have concluded that there may well have been clouding of the issues to be taken into account (as guided by the authorities set out in paragraph 5) and in particular in the case of MJ (Iran). As a result I have come to the conclusion that the judge misdirected himself with regard to how the evidence arising from family members should be viewed.
16. Dealing with the second ground, I believe that at paragraph 45 of the determination Judge Whiting may well have wrongly approached the assistance given in the case of DSG and Others [2013] UKUT 00148. As a result it may well be that the judge viewed the objective evidence as justification for departing from country guidance on the situation involving Sikhs in Afghanistan. As indicated in paragraph 2 of the grant of leave, “the judge may not have engaged with all the material put forward...”.
17. For these reasons I consider that Judge Whiting’s decision must be set aside. Because of my decision thus far I consider it also appropriate to set aside the decision in its entirety to the extent that nothing in that determination may be preserved. I do not therefore consider it appropriate to reach any further conclusions so far as ground 3 is concerned.
18. At the conclusion of the hearing I did discuss with the representatives whether, in the event of the determination being set aside, this matter should be retained in the Upper Tribunal or remitted back to the First-tier Tribunal. Mr Lee quite properly indicated that if he succeeded under ground 1 the appropriate course would be for the matter to be remitted as the appellant’s evidence had not properly been assessed by the First-tier Tribunal. Mr Richards did not object to this course of action and I accordingly remit the case for a fresh hearing de novo, (not before Mr Whiting) during which time the judge will no doubt be directed in detail to the decision in MJ (Iran). In so remitting I have taken into account para 7.2 of the Senior President’s Practice Statements.

Signed Date

Upper Tribunal Judge N Poole