Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09168/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 28th November 2016
On 22nd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

IBRAHIM [I]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Hussain, Lei Dat & Baig Solicitors
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of the Sudan. He applied for asylum in the UK and was refused by the Secretary of State on 5th June 2015. His appeal against that refusal came before Judge Davies on 8th February 2016.
Background
2. The appellant left Sudan on 15th June 2008, travelled to Egypt and Turkey and then on to Greece where he stayed for six years.
3. In considering the credibility of the appellants claim to be at risk on return to the Sudan on account of his being a member of the Berti clan, the judge wrote as follows:
"I have no doubt when considering all the evidence that has been put before me that the appellant's immigration history is significant in assessing his credibility. I find him to be an incredible witness both in relation to his ethnicity and what he claims happened to him in 2008 and why he left the Sudan. His immigration history overwhelmingly indicates that he did not leave Sudan fleeing persecution. Someone who spends some six years in Greece without taking steps to seek international protection is in my view incredible. Whilst I accept that the Greek system of offering international protection is without doubt imperfect and it may not be regarded as a safe country because of that, one has to examine why the appellant spent six years there. If he could not seek international protection in Greece as he suggests, he would have moved as quickly as possible to another country in an attempt to seek international protection. The fact that he spent six years in Greece and made no attempt to seek international protection fatally damages his claim."
4. The appellant sought permission to appeal the judge's decision on the grounds, inter alia, that the judge had improperly applied Section 8 of the 2004 Act.
5. Mr Harrison, for the respondent, did not seek to defend the determination and accepted that the appeal would have to be reheard before a different judge of the First-tier Tribunal.
6. The judge erred in law. It is clear that he did not take into account the failure of the appellant to claim asylum in Greece as his starting point when considering the credibility of the claim, but rather as the determinative factor. In effect, he predetermined the outcome of the ethnicity assessment on the basis of the appellant's immigration history which is wrong.

Notice of Decision
7. The decision is set aside and is remitted to the First-tier Tribunal to be heard by a different Immigration Judge at Manchester.

No anonymity direction is made.

Signed Date 19 December 2016
Deputy Upper Tribunal Judge Taylor