Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA082912014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 23rd May 2016
On 10th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

SUBRAMANIAM YOGATHARSHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Holt of Counsel instructed by Ison Harrison Ltd
For the Respondent: Ms C Johnstone, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
Background
2. On 27th July 2015 Designated Judge of the First-tier Tribunal Zucker gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Chambers who allowed the appeal on asylum and human rights grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant an adult citizen of Sri Lanka.
3. In reaching his decision Designated Judge Zucker noted that the grounds contended, first, that the judge had failed to consider the appellant's claim for asylum in the context of the country guidance set out in GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) particularly when the appellant had been found to be credible in his claim that he had made a minimal contribution to the LTTE cause, was not a member of that organisation nor had any high level involvement with it. It was also submitted that the judge was wrong to dismiss consideration of the decision in the appellant's brother's asylum claim when it was incumbent upon him to have regard to the factual conclusions in that decision as a start point following the Court of Appeal decision in AA (Somalia) [2007] EWCA Civ 1040.
4. Although Designated Judge Zucker gave permission on both grounds raised he thought that the first had "rather more merit" than the second.
The Hearing and Submissions
5. Ms Johnstone confirmed that the respondent relied on the grounds. In relation to the country guidance issue she drew attention to the judge's conclusion, paragraph 30, that it was not apparent that the appellant was formally charged. This meant that the appellant would not have come into the risk categories set out in GJ, particularly that in paragraph 7(d) of the head note covering those who would be placed on a stop list accessible at the airport. The judge had not shown anywhere in the decision that he had regard to the relevant country guidance.
6. Ms Johnstone also submitted that, in relation to the decision in the brother's case (made by Judge of the First-tier Tribunal Pickup and sent out on 28th May 2012), the judge should have had regard, as a start point, to the fact that the brother's claim was completely rejected even though it was interlinked with that of the appellant. In that respect she referred me to the conclusions reached in paragraphs 105, 108 and 114 of the earlier decision which make reference to the claim by the brother in this appeal. The only reference to the appellant's brother in the decision in this appeal is in paragraph 39 where the judge wrongly concludes that the brother's case is not the starting point.
7. Mr Holt conceded that the judge had made no specific reference to the country guidance in GJ but submitted that he did make reference (paragraph 41) to the relevant principle, in 7(d) of the headnote, on the basis that the appellant was an individual who had been arrested and so was suspected by the authorities and therefore questioned on return. He submitted that the judge had found that the appellant was a person with an outstanding court order or arrest warrant and so was entitled to find the appellant fell into the 7(d) risk category. It was evident, from the judge's comments in paragraph 38, that he had breached the bail granted to him which could be regarded as a court order.
8. In relation to the decision in the brother's case Mr Holt argued that the appellant had not been a party to the appeal by his brother and the findings on the present appeal were not incompatible with the risk categories set out in GJ.
9. At the conclusion of submissions representatives suggested that, if an error were found but no findings of fact were to be made, then the matter should remain in the Upper Tribunal.
Conclusions
10. I am unable to conclude that the risk category indentified in paragraph 7(d) of the head note to GJ harmonises with the findings of the First-tier Judge which, for reasons I set out below, are materially affected by the judge's failure to give any consideration to the decision relating to the brother of the appellant in this case. My reasons for those conclusions follow.
11. The judge's findings are materially affected by the failure to apply the guidance of the Court of Appeal in AA (Somalia) [2007] EWCA Civ 1040 which made it clear that the Devaseelan guidelines extend to cases where the earlier decision involved different parties but where there was a "material overlap of evidence" in the sense of matters arising out of the same factual matrix. Whilst the first Adjudicator's decision is not binding in the sense of issue estoppel it is the starting point and, in the interests of good administration, should be followed unless a good reason is advanced to the contrary. There is clearly an identical factual matrix in this appeal and that of the brother which was dismissed by Judge Pickup. The latter makes clear reference to the claimed mutual interest of the authorities in the suspected LTTE activities of both brothers particularly in relation to the claimed reporting to the authorities and arrest of the brother. The First-tier Judge in this appeal also acknowledged that some of the issues in both appeals were the same and involved common questions of fact even if he then wrongly concluded that the brother's case was not a start point. This was clearly a material error because, if the judge had followed the guidance set out in AA (Somalia) he should, as a minimum, have shown that he had given some consideration to the negative credibility findings in the earlier decision about the claims by both brothers. If the judge then chose to make findings which were not in line with those of the earlier judge good reasons should have been advanced but it is clear that the judge considered that he could not even regard those findings as a start point.
12. If the judge had taken account of the findings of the judge in the brother's case then it is possible that he would have reached different factual conclusions. For that reason I conclude that, in respect of this error, alone, it is appropriate that the decision of the First-tier Tribunal should be set aside and the matter re-heard afresh by the First-tier Tribunal. This accords with the Practice Statement of the Senior President of Tribunals of 25th September 2012 at paragraph 7.2 because of the nature and extent of judicial fact-finding which will be necessary to re-make the appeal.
13. The decision also shows a further material error in relation to the judge's assessment of risk on return. There is no reference, in the decision, to the relevant country guidance set out in GJ. Although it is evident that the judge had such guidance in mind when referring to a "recognised risk category" in paragraph 41, his summary of that category as someone "who has been arrested and who is suspected by the authorities and who will, on return be questioned" is not an accurate reflection of paragraph 7(d) of the head note to GJ which reads:
"(d) A person whose name appears on a computerised 'stop' list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a 'stop' list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant."
It is evidence that the risk category does not specifically involve those who have been arrested or those who are suspected by the authorities. It relates to those against whom there are specific court orders or arrest warrants. That is not the same. Although Mr Holt has argued that any bail documents issued to the appellant would come into the court document category that is a matter which would require some supporting evidence. The judge's failure to accurately identify the risk category against the background of the country guidance authority, to which he made no reference, amounts to a further error although, as I have already indicated, the judge's earlier credibility findings are vitiated by the failure to have regard to the decision in the brother's case. Further, the matter is affected by the apparent inconsistency in the determination which stems from the comment of the judge in paragraph 30 of the decision where he says that it was "not apparent that the appellant was charged".
Notice of Decision
The decision of the First-tier Tribunal shows material errors on points of law. I set aside the decision of the First-tier Tribunal and remit the appeal to the First-tier Tribunal for hearing afresh on all issues.
Anonymity
No anonymity direction was made by the First-tier Tribunal nor do I consider one appropriate in relation to the matters before the Upper Tribunal.
DIRECTIONS
1. The appeal is to be heard afresh before the First-tier Tribunal at the Manchester Hearing Centre on a date to be specified by the Resident Judge.
2. The appeal should not be heard before Judge of the First-tier Tribunal Chambers.
3. A Tamil interpreter will be provided for the hearing unless representatives indicate to the contrary at least 7 days before the substantive hearing.
4. The time estimate for the hearing is 3 hours.

Signed Date 10th June 2016

Deputy Upper Tribunal Judge Garratt