Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07210/2015

THE IMMIGRATION ACTS

Heard at Manchester Crown Court
Decision & Reasons Promulgated
On 7 September 2016
On 13 September 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

VEC
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Miss Davies, Duncan Lewis & Co Solicitors

DECISION AND REASONS

1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). By a decision dated 21 April 2015, the respondent refused the appellant asylum and refused him leave to enter the United Kingdom. The appellant appealed to the First-tier Tribunal (Judge M Davies) which, in a decision promulgated on 7 April 2016, allowed the appeal on asylum and human rights (Articles 2 and 3) grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The grounds challenge the judge's decision asserting a failure on the part of the judge to give adequate reasons for findings on material matters. It is submitted that the judge failed to engage with issues as to the appellant's credibility but instead relied entirely upon a letter (which appears at page 27 of the appellant's bundle) dated 23 February 2016 sent by the US Department of Justice (Drug Enforcement Administration) to the appellant's solicitor. This letter confirms that the appellant was a confidential source for the drug enforcement administration between 2013 and 2014. It is absolutely clear from the Record of Proceedings and the decision of the judge that the Presenting Officer before the First-tier Tribunal (Mr Richardson) not only accepted the genuineness of that letter but also (as the judge states at [21]) "chose not to make any submissions or indeed place any reliance on the refusal letter." In those circumstances, it is difficult to see why the judge was required to give detailed reasons for finding, as he did, that (1) the appellant's account was truthful and (2) in the light of the background material indicating the level of the threat to Colombians in that country who may have cooperated or colluded with the drug enforcement agencies, that he faced a real risk of ill-treatment on return to Colombia. The grounds do not challenge the judge's findings [26] that the Colombian authorities were not reasonably likely to be in a position to offer protection to the appellant from those who may wish to harm him.
3. The grounds also assert that the judge failed to consider the evidence holistically, failing in particular to consider the US Department of Justice letter as part of the totality of the evidence. I do not consider that ground has any merit. Before the First-tier Tribunal, the Presenting Officer did not invite the judge to make any finding to the effect that the appellant was not credible; indeed, the Presenting Officer did not choose to cross-examine the appellant who was present at court. Most tellingly, the Presenting Officer told the judge that he placed no reliance on the refusal letter which had contained a number of challenges to the appellant's credibility. It is also significant that the grounds of appeal to the Upper Tribunal do not assert that, if the appellant is, as he claims, a former "confidential source" of the US Drug Enforcement Administration, then he would not be exposed to the real risk of persecution or ill-treatment on return to Colombia. It is clear that the Secretary of State accepts that, if he is what he claims to be, then the appellant would be at real risk on return to Columbia.
4. At the hearing in the Upper Tribunal, Mr McVeety did no more than rely upon the grounds of appeal. Candidly, he acknowledged that the Secretary of State was not in a position to submit anything which might suggest that the First-tier Tribunal decision should be set aside. In the circumstances, the Secretary of State's appeal is dismissed.

Notice of Decision

This appeal is dismissed.

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 12 September 2016

Upper Tribunal Judge Clive Lane