Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08398/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 October 2016
On 3 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

M K
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Chakmakjain (counsel) instructed by Leonard & Co, solicitors
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, preserving the anonymity order made by the Fist-tier Tribunal.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O'Hanlon promulgated on 22 June 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 24 April 1985 and is a national of Sierra Leone.
4. On 11 March 2015 the Secretary of State refused the Appellant's protection claim.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge O'Hanlon ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 23 September 2016 Upper Tribunal Judge Chalkley gave permission to appeal stating
"I do not wish to raise the appellant's hopes too much but it is, I think, properly arguable that paragraphs 42 and 43 of the determination the judge may have erred. I grant permission in respect of ALL challenges."
The Hearing
7.(a) Mr Chakmakjian, counsel for the appellant, moved the grounds of appeal. He told me that at [39] the Judge had jumped to a conclusion in relation to a passport which the appellant says is a forgery. He told me that the Judge failed to consider to a reasonable alternative explanation about the authenticity of the passport and in doing so had failed to take account of matters material to the outcome of the appeal. He told me that the Judge's findings at [39] of the decision are inadequately reasoned.
(b) Mr Chakmakjain moved to [42] of the decision, where the Judge found that the appellant is not a victim of trafficking. He argued that all the Judge does there is adopt the conclusion of the National Referral Mechanism ("NRM"), which employs a different standard of proof, and that the Judge did not analyse the evidence for himself. He argued that a material error of law can be found there because the Judge does not make his own evidence-based findings of fact. He told me that the NRM decision was taken without reference to medical evidence and without reference to evidence of counselling, and that evidence was before the Judge. He told me that the decision is devoid of reference to the medical evidence and the answers to 150 questions that the appellant provided at interview. He argued if that the Judge had analysed those sources of evidence, the blanket acceptance of the NRM's conclusions would not feature in 42 of the decision.
8. It was at that point that Mr Nath, for the respondent, asked for time to discuss this case with counsel for the appellant. After a 15 minute adjournment, parties' agents returned and Mr Nath told me that he accepted that the decision is tainted by a material error of law because the Judge's findings are inadequately reasoned at [42] and [43] of the decision. He told me that an entirely new fact-finding exercise is required to justly determine this case. Counsel for the appellant joined with Mr Nath in asking that the case be remitted to the First-tier tribunal.
Analysis
9. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.
10. The Judge's findings are set out between [38] and [45] of the decision. At [42] the Judge adopts the findings of NRM rather than analysing the evidence and reaching his own findings of fact. There is merit in Mr Chakmakjain's argument that inadequate consideration has been given to the medical evidence and the answers provided by the appellant at asylum interview. What is lacking is a meaningful analysis of each strand of evidence. The Judge has apparently raced to a conclusion placing reliance on only one source of evidence without explaining why the remaining sources of evidence are given little or no weight.
11. I therefore find that the decision is tainted by a material error of law. A holistic consideration of each strand of evidence may have resulted in a different conclusion. The appellant is a vulnerable female and is receiving counselling. There is a real risk that her ability to give a full account of her experiences is affected by the gender of her audience. Any further hearings should take place before an all-female tribunal if at all possible.
Remittal to First-Tier Tribunal
12. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
13. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
14. I remit the matter to the First-tier Tribunal sitting at Bradford to be heard before any First-tier Judge other than Judge O'Hanlon.

CONCLUSION
Decision
15. The decision of the First-tier Tribunal is tainted by material errors of law.
16. I set aside the Judge's decision promulgated on 22 June 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 2 November 2016

Deputy Upper Tribunal Judge Doyle