Tribunal decisions

The decision

IAC-TH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08080/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 December 2016
On 15 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

B Y
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Lay, Counsel, instructed by Bankfield Heath Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is a resumed hearing following my decision promulgated on 31 March 2016 in which I found that the First-tier Tribunal materially erred in law in respect of the Appellant's appeal (the error of law decision is annexed to the current decision).
2. In summary, I found that whilst the First-tier Tribunal had found that the Appellant had not evaded or deserted from military service in Eritrea, it had found that the Appellant left that country illegally. On this basis the judge should have gone on and considered the issue of risk on return in detail, having regard to all of the country information put before him. His failure to do so rendered his decision unsafe and I therefore set it aside. In doing so I issued directions to the parties and the Upper Tribunal's administration. The matter has eventually come back to me.

The hearing before me
3. I confirmed with both representatives that they had read and considered my error of law decision, and that this appeal now falls to be decided in light of the recent country guidance in MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 443 (IAC).
4. With his customary fairness, Mr Tufan accepted that in view of what I had said in paragraph 4 of my error of law decision (with reference to what the First-tier Tribunal had found at paragraphs 38 and 40 of its decision) it was now difficult for the Respondent to resist the Appellant's case, although he was not conceding the matter. He sought to rely on the reasons for refusal letter but acknowledged that the First-tier Tribunal had accepted that this particular Appellant left Eritrea illegally and there had been no challenge to that finding. He had nothing more to add.
5. Mr Lay simply relied on his skeleton argument.

My remaking of the decision in this appeal
6. As I announced to the parties at the hearing, I am allowing the Appellant's appeal.
7. Whilst it is true that certain material aspects of the Appellant's claim were rejected by the First-tier Tribunal, a separate but nonetheless very significant aspect of it was accepted, namely that he left Eritrea illegally.
8. In light of the clear country guidance set out in MST, the Appellant would on return be regarded with sufficient hostility so as to place him at real risk of persecution for the Convention reason of imputed political opinion and/or treatment contrary to Articles 3 and/or 4 ECHR.

Notice of Decision
The decision of the First-tier Tribunal contained material errors of law and is set aside.
I determine that the Appellant's removal from the United Kingdom would be in breach of its obligations under the Refugee Convention and would also be unlawful under Section 6 of the Human Rights Act 1998.
I therefore remake the decision by allowing the Appellant's appeal.

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: 14 December 2016
Deputy Upper Tribunal Judge Norton-Taylor

To the Respondent
No fee is payable in this case and so there can be no fee award.
Annex 1: Error of law decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08080/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 16 March 2016

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Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

B Y
(anonymity directioN MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Raoul, Counsel, instructed by Bankfield Heath Solicitors
For the Respondent: Mr C Dewison, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Crawford (the judge), promulgated on 27 July 2015, in which he dismissed the Appellant's appeal. That appeal was against the Respondent's decision of 5 May 2015, refusing the protection claim made on 3 December 2014.
2. This is one of the increasing numbers of appeals from Eritrean nationals refused by the Respondent on the basis of new country information which suggests that the position of nationals returned to Eritrea now may not be as potentially dangerous as set out in the country guidance case of MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 00190 (IAC). The new information in question consists mainly of the much-publicised Danish Immigration Service's Fact Finding Report of November/December 2014.

The judge's decision
3. The judge did not accept that the Appellant had been called up for military service, had deserted from such service, or even that he was an evader (paragraphs 33, 38, and 40).
4. However, the judge did accept that the Appellant had left Eritrea illegally in 2010 (paragraphs 38 and 40).
5. Notwithstanding this residual finding in the Appellant's favour, the judge went on to accept the contents of the Danish report and conclude that he was not at risk on return (paragraph 40).

The grounds of appeal and grant of permission
6. The grounds do not challenge the findings on evasion and desertion. Instead they assert that the judge erred in failing to consider other country information which criticised the Danish report.
7. Permission to appeal was granted by First-tier Tribunal Judge Mailer on 19 August 2015.

Decision on error of law
8. At the hearing before me Mr Dewison very fairly accepted that the judge's approach to the issue of risk on return was flawed.
9. There is a clear material error of law in this case. The judge entirely failed to consider any of the country information put forward by the Appellant. This information went to the reliability of and weight attributable to the Danish report.
10. If the judge in fact had this information in mind, he failed to give any reasons for rejecting it.
11. Furthermore, the judge failed to say why the contents of the Danish report were such that it justified a departure from the country guidance case of MO.
12. The judge's decision is set aside.
13. As the findings on the evasion of and desertion from military service are unchallenged, they are preserved.

Disposal
14. Ms Raoul suggested that I should remake the decision on the evidence before me.
15. I have decided to take a different course. As I write this decision, the Upper Tribunal has, as far as I know, heard, or is in the process of hearing, country guidance cases in the linked appeals of M S T (AA/07733/2015), T M (AA/06369/2015, M Y K (AA/11206/2014), and Adem Ibrahim Aman (DA/00924/2014). These cases are considering, amongst other issues, the Danish report, the expert Dr Kibreab, and other competing country information.
16. In light of this, it is appropriate to adjourn the remaking of the decision in the present appeal until after the Upper Tribunal has promulgated its new country guidance. The appeal shall be retained in the Upper Tribunal.

Anonymity
17. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. This direction has been made in order to protect the Appellant from serious harm, having regard to the interests of justice and the principle of proportionality.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision of the First-tier Tribunal.

The appeal is adjourned for a continuation hearing to follow in due course.

Directions to the parties:

1. Both parties shall liaise with the Upper Tribunal with respect to the listing of the continuation hearing at North Shields;
2. The findings of the First-tier Tribunal on evasion of and desertion from military service in Eritrea are preserved;
3. Any further evidence relied upon shall be filed with the Upper Tribunal and served on the other side no later than 10 working days before the next hearing.

Directions to Administration:

1. The appeal is adjourned, for a date to be fixed once the new country guidance cases on Eritrea are promulgated;
2. The parties will liaise with Listings when fixing a new date;
3. The appeal is to be listed at North Shields;
4. The appeal shall not be heard by First-tier Tribunal Judge Crawford;
5. There is a one hour time estimate for the next hearing;
6. No interpreter is required.

Signed Date: 30 March 2016

H B Norton-Taylor
Deputy Judge of the Upper Tribunal