Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/08728/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 7 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

KJ
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Robertson, counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge KSH Miller, promulgated on 6 September 2016. Permission to appeal was granted by First-tier Tribunal Judge Shimmin on 5 October 2016.

Anonymity
2. No direction has been made previously, however in view of the fact that this is a protection claim, an anonymity direction is made now and set out below.
Background
3. The appellant arrived in the United Kingdom in around 2010 and made his asylum claim after being apprehended in 2013. Hitherto, the appellant's asylum claims made in Greece and France were both refused. The basis of the appellant's asylum claim in the United Kingdom was that he was targeted by the Taliban on account of his service in the Afghan National Army. In addition, the appellant's brother was an interpreter for American forces and was killed in a roadside bomb in 2011.
4. The Secretary of State rejected the appellant's claim to have been part of the Afghan national army owing to his inability to correctly answer questions during his interview. Furthermore, it was not accepted that the Taliban had targeted the appellant owing to his inability to recall when key events occurred and inconsistencies between his accounts. It was accepted that the appellant's brother worked as an interpreter and that he was killed in a roadside bomb, however it was not accepted that he was a deliberate target of the Taliban. The appellant's claim that his father was abducted and killed was rejected because the appellant was relying on a second hand account of this event.
The hearing before the First-tier Tribunal
5. The appellant's appeal was dismissed following a hearing before First-tier Tribunal Judge Andrew which took place on 12 August 2015. That decision was set aside in its entirety by Deputy Upper Tribunal Judge Peart on 19 November 2015.
6. At the hearing before First-tier Tribunal Judge Miller, the appellant gave evidence. The appellant also relied on a psychological report which described him as being of "borderline intelligence," as well a series of expert reports from Dr Antonio Giustozzi. The judge rejected the appellant's asylum appeal on credibility grounds alone.
The grounds of appeal
7. The grounds of appeal argue, essentially, that the judge failed to make any reference to the expert evidence of Dr Giustozzi in his conclusions; that he failed to make any findings regarding the second limb of the appellant's claim which related to his brother's interpretation work; that the judge erred in his approach to credibility which included substituting his own assessment of the appellant's intelligence for that of the expert and lastly, the judge failed to address the appellant's humanitarian protection claim which was partially based on his borderline intelligence and "probable blindness."
8. Permission to appeal was granted on all grounds.
9. The respondent's Rule 24 response, received on 13 October 2016 indicated that the appeal was not opposed and invited the Tribunal to "determine the appeal with a fresh oral (continuance) hearing as the First Tier Tribunal Judge failed to make any findings in respect of the expert's report."
10. Prior to the hearing, those representing the appellant attempted to seek clarification from the respondent whether, firstly, the appeal should be remitted de novo with none of the judge's findings preserved and secondly whether the contents of a witness statement provided by counsel with the grounds of appeal were accepted.
The hearing
11. Owing to the correspondence from the appellant's solicitors, I invited Mr Avery to address me on the respondent's view as to the extent of the agreement between the parties to remit the appeal. He advised me that the respondent would be arguing that the judge's credibility findings were sustainable and should be preserved.
12. Ms Robertson, concentrated her submissions solely on the credibility findings. She argued that the expert reports went to the credibility of the appellant's claims to work for the border police. The judge's findings concerned only one issue and were to be found at [47(ii)]. Ms Robertson conceded that the judge would have been entitled to come to this conclusion if he had also factored in the expert opinion. At [47(i)] the judge referred only to issues raised in the appellant's oral evidence and made no reference to the expert opinion.
13. In reply, Mr Avery stated that there was some dispute as to whether the judge's record of proceedings was accurate, however, in his view, the judge's interpretation was not materially different to that of counsel. In any event, Dr Giustozzi's report described a situation not consistent with what the appellant said about use of firearms. The appellant said he was not told how to fire it, however, it was not credible that he would not been taught to fire it or would not have used it in the course of duties. The judge's findings were sustainable.
14. Ms Robertson did not seek to address the issue as to the record of proceedings as this would amount to her giving witness evidence. While the judge was entitled to find that adverse credibility issues outweighed the expert opinion, her point was that the judge did not demonstrate that he weighed the oral evidence against the positive evidence of the expert.
Decision on error of law
15. At the end of the hearing, I announced that the judge made material errors of law and that I would be remitting the appeal de novo. My reasons are as follows.
16. Mr Avery conceded that the judge failed to make any findings regarding the expert evidence and that he entirely failed to address the second limb of the appellant's case, regarding the activities of his brother.
17. I decided to set aside the judge's negative credibility findings in their entirety primarily because Ms Robertson was, rightly, in view of BW (Witness statements by Advocates) Afghanistan [2014] UKUT 00568 (IAC), unable to make any submissions regarding what the grounds described as the judge's incorrect summary of the appellant's evidence at 47(i) of his decision.
18. In advance of the hearing, those representing the appellant sought clarification from the respondent as to the approach that would be taken at the error of law hearing. I was referred to no response to those enquiries. Had some indication been forthcoming, alternative counsel could have been instructed and the point regarding the record of proceedings pursued with vigour.
19. Given the foregoing, it would be unjust to remit this matter with the negative credibility findings preserved and these are, therefore, set aside along with all the other findings made.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside, with no findings preserved.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Miller, Designated Judge Peart or First-tier Tribunal Judge Andrews. A Pushtu interpreter is required.

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 20 July 2020

Upper Tribunal Judge Kamara