Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA093022014

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 2nd June 2016
On 13th June 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

P D P
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Capel instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction
2. The appellant is a citizen of Angola who was born on [ ] 2001. He arrived in the United Kingdom on 4 June 2014 and claimed asylum on 26 August 2014.
3. The basis of the appellant's claim was that he feared persecution in Angola as a result of his father's political association with Unita (the opposition to the current ruling party). He claimed that his father had disappeared and that he (the appellant) had been injured during an attack upon his sister.
4. Subsequently, the appellant also claimed to be at risk because of his ethnicity and because of accusations of witchcraft in Angola.
5. On 14 October 2014, the Secretary of State refused the appellant's claim for asylum, for humanitarian protection and under Arts 2, 3 and 8 of the ECHR. On 27 October 2014, the Secretary of State made a decision to remove the appellant to Angola by way of directions.
The Appeal
6. The appellant appealed that decision to the First-tier Tribunal. Before the First-tier Tribunal, the appellant now relied upon the extended basis upon which he claimed to be at risk on return to Angola. In support of his claim, and in particular that his claim was credible, the appellant relied upon two expert reports: one by Dr Longman dealing with the appellant's injuries and one by Dr Judge, a psychiatrist dealing with the appellant's mental health and in particular the diagnosis of PTSD which (it was said) was consistent with his claim to have suffered in Angola.
7. In a determination promulgated on 9 November 2015, Judge G C Solly dismissed the appellant's appeal on all grounds. The judge made an adverse credibility finding and did not accept the appellant's claim to be at risk of persecution or serious ill-treatment because of his father's political involvement, the appellant's ethnicity or because of accusations of witchcraft.
8. The appellant sought permission to appeal to the Upper Tribunal. On 7 December 2015, the First-tier Tribunal (Judge Grimmett) granted the appellant permission to appeal. In particular, the judge identified as an arguable error of law (as set out in Ground 1 of the Grounds of Appeal) namely the judge's failure properly to consider the expert evidence.
9. On 15 December 2015, the Secretary of State filed a rule 24 response seeking to uphold the judge's decision.
10. Thus, the appeal came before me.
Discussion
11. At the outset of the hearing, Ms Capel sought to argue that Judge Grimmett had granted permission to appeal not only on Ground 1 but also on Grounds 2 and 3 despite the wording of her decision which could be read as refusing permission on Grounds 2 and 3. Ms Capel pointed out that the notice sent out by the Tribunal, following the grant of permission, was IA66. That was not the notice (namely IA68) sent out when permission was granted only on a limited basis which identified for the appellant the option of renewing his application for permission to appeal on the "refused" grounds directly to the Upper Tribunal.
12. Mr Richards submitted that the decision by the First-tier Tribunal was, indeed, only a grant of permission on Ground 1.
13. Having heard both representatives, I indicated that, in my view, whilst Judge Grimmett had indicated that there was no merit in Grounds 2 and 3, the form of her decision did not amount to a grant of permission solely on Ground 1. That view is borne out by the fact that Judge Grimmett's comments on Grounds 2 and 3 do not cover the full range of points raised under those grounds. I indicated, however, that if I were wrong in that I would allow Ms Capel to renew her application for permission.
14. Mr Richards indicated that he would like some time to consider his submissions on Grounds 2 and 3 and the appeal was put back to the end of my list giving Mr Richards time to prepare for his submissions.
15. When the appeal came back on at the end of the list, I heard detailed submissions from Ms Capel on all three grounds. It is unnecessary for me to set out those submissions developing Grounds 1, 2 and 3, because, having heard Ms Capel's submissions, Mr Richards conceded that the judge had materially erred in law (as set out in Ground 1 upon which permission had been granted) by failing to take into account, or indeed refer to at all, the expert evidence of Dr Judge concerning the appellant's psychiatric condition and its evident relevance to the appellant's credibility. Mr Richards accepted that the report was consistent with the appellant suffering from PTSD as a result of events in Angola. The judge had made no mention whatsoever of that evidence and, Mr Richards accepted, his decision could not stand as a result.
16. Mr Richards accepted that the appellant's appeal to the Upper Tribunal should be allowed and the First-tier Tribunal's decision set aside and the appeal remitted to the First-tier Tribunal for a de novo rehearing before a different judge.
Decision and Disposal
17. In the light of the Secretary of State's concession that the First-tier Tribunal's decision cannot stand - a concession which in my view was properly made - I am satisfied that the judge did materially err in law by failing to take into account the expert psychiatric evidence in reaching his adverse credibility finding.
18. In those circumstances, the decision of the First-tier Tribunal is set aside.
19. Given the nature and extent of the fact finding involved and having regard to para 7.2 of the Senior President's Practice Statement, the appropriate disposal of this appeal is to remit it to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Solly.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 13 June 2016