Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08325/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 27 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

JW
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No attendance
For the Respondent: Mr Harrison, Senior Presenting Officer

Anonymity
I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives.

DECISION AND REASONS
1. On the day of the hearing an application for an adjournment was received on behalf of the appellant, it being said in a communication from the clerk to Counsel (Mr Patrick Lewis of Garden Court Chambers) that although solicitors had instructed Mr Lewis to attend the hearing there had been an administrative error within his Chambers and thus he was unaware that the hearing was to take place. The Chambers are in London and there was no prospect of Mr Lewis being available to attend the hearing in Manchester later on the same day. Neither was there any prospect of alternative Counsel being made available.
2. I refused such application primarily on the basis that, having sought Mr Harrison's views on it he quite properly indicated that it was the Secretary of State's intention to accept that the First-tier Tribunal's decision contained an error of law, that it should be set aside and that the appeal should be remitted to the First-tier Tribunal for a de novo hearing.
3. In these circumstances, given that this is the best that the appellant is likely to achieve before the Upper Tribunal, I concluded that it was not in the interests of justice to adjourn the hearing.
4. Turning then to the First-tier Tribunal's decision. The appellant brought an appeal to the First-tier Tribunal against the decision of the Secretary of State dated 8 May 2015 refusing his protection claim. That appeal was heard by First-tier Tribunal Judge Moxon at the Harmondsworth hearing centre on 5 January 2016 and dismissed in a decision promulgated on 8 January. I need not go into the evidence and conclusions of the judge, save to observe that core aspects of the appellant's claim were disbelieved.
5. The appellant appeals to the Upper Tribunal with the permission of First-tier Tribunal Judge Astle, made in the following terms:
"2. The grounds argue that the judge erred in failing to give any weight to the core of the appellant's claim and the claim of his cousin whose appeal was allowed. His claim was not undermined by the factors listed by the judge. The appellant's evidence and that of his cousin was consistent. The judge failed to refer to objective evidence. The reasons for rejecting the appellant's claim were inadequate.
3. It is arguable that the judge failed to explain adequately why, given his findings in paragraph 35, the appellant would not be at risk on return. It is arguable that in criticising the appellant's delay in making his claim, the judge did not engage with the core of the claim."
6. As it turns out there is a more fundamental error in the First-tier Tribunal's decision than that identified as arguable by Judge Astle - as Mr Harrison properly acknowledged.
7. In paragraph 4 of its decision the First-tier Tribunal directs itself as follows in relation to "The Law":
"4. The burden is on the appellant to show with regard to the asylum appeal that returning him would expose him to a real risk of an act of persecution for reasons set out in Regulation 6 of the Refugee or Person in Need of International Protection 'Qualification' Regulations 2006."
8. On its face this paragraph does not identify anywhere therein the standard of proof to which the appellant must make out his claim. Of course, the First-tier Tribunal is an expert Tribunal and one should be slow to infer from the absence of an appropriate self-direction that the First-tier Tribunal have misunderstood or misapplied such standard.
9. Nevertheless, at paragraph 53 of its decision the Tribunal state as follows:
"Having balanced all these factors into account I find as more likely than not that whilst it would have been foreseeable for the army to have attended the appellant's address as a consequence of information provided by his cousin that they have in fact not done so. The fact that they have not attended his address is a clear indication that he is of no interest to them and that they do not believe that he has assisted, supported or otherwise the LTTE."
10. Looking at the decision as a whole, and in particular observing (i) the failure of the First-tier Tribunal to properly direct itself to the standard of proof and (ii) the obvious misdirection as to the appropriate standard in paragraph 53 thereof, I cannot be satisfied that the First-tier Tribunal applied the correct standard of proof.
11. As a consequence, and as accepted by Mr Harrison, the FtT's decision is flawed by legal error capable of affecting the outcome of the appeal. Consequently, I set aside the such decision.
12. The most appropriate course in the circumstances of this case is for the matter to be remitted back to the First-tier Tribunal to be heard on a de novo basis.
Notice of Decision
The decision of the First-tier Tribunal contains an error of law capable of affecting the outcome of the appeal and it is set aside.
The appeal will be remitted to the First-tier Tribunal to be determined on a de novo basis.

Signed:

Upper Tribunal Judge O'Connor