The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09351/2015


Heard at Glasgow
Decision Promulgated
On 19 August 2016
On 25 August 2016






For the Appellant: Mr G Dewar (counsel) instructed by Peter G Farrell, solicitor
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge D'Ambrosio promulgated on 27 November 2015, which dismissed the Appellant's appeal on all grounds.
3. The Appellant was born on 12 October 1979 and is a national of Ethiopia. The appellant entered the UK in October 2007. On 3 October 2007 the appellant claimed asylum. On 25 February 2008 the respondent refused that application. The appellant appealed against that refusal, and his appeal was dismissed on 7 April 2008. His rights of appeal were exhausted on 4 December 2008.
4. The appellant left the UK for the Republic of Ireland in 2010. Whilst there he claimed asylum, but the Irish Immigration authorities declined to deal with his application, relying on the Dublin convention. The appellant returned to the UK in 2011. On 22 June 2011 the appellant submitted a further asylum claim, which he withdrew on 4 August 2011. Between 29 August 2011 and 24 September 2013 he presented a sequence of further submissions to the respondent.
5. On 10 March 2013 the Secretary of State refused the Appellant's renewed application for asylum.
The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge D'Ambrosio ("the Judge") dismissed the appeal against the Respondent's decision.
7. Grounds of appeal were lodged and on 20 January 2016 Upper Tribunal Judge Rintoul gave permission to appeal stating
"I am, just, persuaded that the reasons given by the First-tier Judge D'Ambrosio for rejecting documents served late, are arguably defective in failing to address why so to do was in the interests of justice. While what is said at 2.2 is not supported by a proper reading of what was said at paragraph 85, there is merit in the grounds are [2.3] and [2.4].
Permission is granted on all grounds."
The Hearing
8. (a) Mr Dewar, counsel for the appellant moved the grounds of appeal. He told me that there are four grounds of appeal. The first is an arguable failure of the First tier Tribunal Judge to consider the question of the interests of justice when excluding the productions tendered at the bar at the start of the hearing. The second is the manner in which the Judge dealt with the issue of corroboration. The third is an argument that there has been a failure to apply anxious scrutiny to all of the evidence, and the fourth is an argument that there has been common law unfairness.
(b) Mr Dewar told me that an Inventory of productions, containing 28 pages of background materials, together with a report from Dr Trueman and a letter from OLF (London) were tendered at the start of the hearing. He took me to [11] of the decision where the Judge records that he
"... accepted the documents into process but refused Mr Bradley's motions to allow them to be used as evidential productions for the appellant ..."
The Judge then goes on (at [12]) to accept Dr Trueman's report
"... as evidence ?"
(c) Mr Dewar told me that the only reason given by the Judge for rejecting the materials tendered is that they are tendered late. He told me that that is a material error of law, and referred me to AK (Admission of Evidence- Time Limits) Iran [2004] UKIAT 00103
(d) Mr Dewar took me to the second ground of appeal. He reminded me that there is no requirement for corroboration, but took me to [91] & [97] where, he told me, the Judge bemoans the lack of corroborative evidence produced by the appellant. He told me that the Judge's views on corroboration must be seen in the light of a refusal to accept an inventory of productions containing supportive evidence.
(e) The third ground of appeal relates to common-law fairness. Mr Dewar told me that at [89] the Judge compares the appellant's evidence with what can be found in Dr Trueman's report, and makes findings against the appellant on matters which were not put to the appellant. He argued that the Judge's failure to give the appellant a chance to comment on a matter which the Judge found turns against him is unfair.
(f) Finally, Mr Dewar argued that the Judge failed to give anxious scrutiny to each adminicle of evidence before reaching his decision. He referred me to MN v SSHD [2014] UKSC 30. He told me that the apparent lack of anxious scrutiny lead to finding which are irrational. He told me that the decision is tainted by material errors of law, and urged me to set the decision aside.
9. (a) For the respondent, Mr Matthews told me that the decision does not contain any errors of law, material or otherwise. He asked me to consider the documents produced in the 28 page inventory of productions. He carefully went through each of the documents which the Judge did not consider, and told me that none of the documents were central to this case. He argued that even if the Judge had considered each of the documents, the same decision would be reached.
(b) Mr Matthews took me through the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, and told me that the Judge's decision not to allow late productions is consistent with the overriding objective set out in rule 2 and the case management powers found in rule 4. He also referred to Practice Direction 7(5).
(c) Mr Matthews turned to the second ground of appeal. He reminded me that at [96] the Judge correctly sets out that corroborative evidence is not necessary, before examining the authorities at [97]. He told me that at [98],[99] & [100] the Judge is not rejecting the claim because it is not corroborated, instead he is examining the quality of the evidence and examining gaps in the evidence placed before him.
(d) Turning to the question of common law fairness, Mr Matthews told me that a fair reading of the determination discloses that the Judge is simply not satisfied that satisfactory and sufficient evidence has been produced, so that the appellant cannot discharge the burden of proof. He told me that the Judge has acted fairly and considered each strand of evidence, setting out the reasons for his conclusions carefully. For the same reasons, he argued that the decision shows that the Judge gave each strand of evidence careful scrutiny. He asked me to dismiss the appeal and allow the decision to stand.
10. In AK (Iran) 2004 UKIAT 00103 the Tribunal pointed out that the qualification contained in the closing words of Rule 48(5) (of the earlier procedure rules) relate to good reasons for considering the evidence, not good reasons as to why the evidence was not filed or served in time. The Tribunal said that the understandable desire on the part of Adjudicators to enforce due compliance with such directions and provisions must be balanced against the competing requirement to ensure that justice is done in a jurisdiction in which appeals routinely require the "most anxious scrutiny" and in which the issues at stake frequently involve matters of life, limb and liberty. The Tribunal said
"? whilst there may be individual cases in which it would be right for an Adjudicator to exclude material, or potentially material evidence on which a party (normally the appellant) wishes to rely by reason of the failure by that party to file or serve the evidence in time, nevertheless, as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity."
11. The procedure rules have changed since AK was decided. The procedure in this case was regulated by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, but the basic principles have not changed. The 2014 procedure rules deal with the need to deal with cases expeditiously, fairly and justly. There is no specific provision for the admission or exclusion of productions. Rule 6 empowers the First-tier Tribunal to waive the requirements of a direction.
12. In R v Immigration Appeal Tribunal ex parte Singarajah Jeyeanthan [1999] INLR 241 the Court of Appeal stated that
"... when considering the effect of non-compliance with a procedural requirement laid down by a statute or regulation the question of whether the requirement was directory or mandatory was at the most a first step. In the majority of cases three further questions were likely to arise: (i) was a statutory requirement fulfilled when there had been substantial compliance with the requirement and, if so, had there been substantial compliance in the case in issue even though there had not been strict compliance? ii) was the non-compliance capable of being waived and, if so, had it or could it and should it be waived in a particular case? and (iii) if it is not capable of being waived or it is not waived, then what is the consequence of non- compliance?"
13. At [11] the Judge bears to accept the productions, but then refuses
"? to allow them to be used as evidential productions for the Appellant ... "
The only reason given is that the productions are tendered late. The record of proceedings discloses that the Inventory of productions was tendered as the appellant's solicitor made an application to adjourn the hearing for further time to prepare and to instruct an up-dated expert report.
14. It was open to the Judge to allow the inventory of productions to be received or to refuse to allow it to be received. The middle path taken by the Judge is wrong. It is hard to see what purpose is served by receiving the inventory into process, and then ignoring it. Once the documentary evidence was received it formed part of the evidence in the case. What the Judge has gone on to do is ignore part of the appellant's evidence. That evidence might have resulted in a different outcome if it had been considered. The decision to allow and then ignore evidence is a material error of law.
15. There is no merit in the second ground of appeal. Counsel for the appellant accepts that [96] is correct in law. At [97] the Judge correctly considers ST (Corroboration - Kasolo) Ethiopia [2004] UKIAT 00119 in which the Tribunal said that it was a misdirection to imply that corroboration was necessary for a positive credibility finding. However, the fact that corroboration was not required did not mean that an Adjudicator was required to leave out of account the absence of documentary evidence, which could reasonably be expected: the Adjudicator was entitled to comment that it would not have been difficult to provide the relevant documents in this case. In particular, the Adjudicator was entitled to comment that it would not have been difficult for the Appellant to provide a death certificate concerning his brother or some evidence to support his contention that he had received hospital treatment. These were issues of fact for the Adjudicator to assess. The Tribunal noted that the Adjudicator had taken into account the fact that claimants could well have difficulty in presenting documentation and the provisions of the UNHCR handbook on giving claimants the benefit of the doubt. In the circumstances, the Tribunal declined to intervene and said that an appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support.
16. The Judge also takes account of TK (Burundi) v SSHD (2009) EWCA Civ 40 in which the Court of Appeal said that where there were circumstances in which evidence corroborating the appellant's evidence was easily obtainable, the lack of such evidence must affect the assessment of the appellant's credibility. It followed that where a Judge in assessing credibility relied on the fact that there was no independent supporting evidence where there should be and there was no credible account for its absence, he committed no error of law when he relied on that fact for rejecting the account of the appellant. In this case the evidence concerned a partner in the UK.
17. Because I find that the Judge materially errs in law by failing to take account of all of the documentary evidence, then the submission that there has been an overall failure to give anxious scrutiny to the evidence in this case must be correct.
18. Objective background materials and a letter bearing to be from OLF (UK) were given inadequate consideration by the Judge. The appellant should have the opportunity to present his evidence afresh.
Remittal to First-Tier Tribunal
19. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 a 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.
20. In this case I have determined that the case should be remitted because of the nature and extent of the fact finding exercise necessary to reach a just decision in this appeal. None of the findings of fact are to stand. A complete re-hearing is necessary.
21. I remit the matter to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge D'Ambrosio.
22. The decision of the First-tier Tribunal is tainted by material errors of law.
23. I set the decision aside. The appeal is remitted to the First Tier Tribunal to be determined of new.

Signed Date 24 August 2016

Deputy Upper Tribunal Judge Doyle