Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09785/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 August 2016
On 17 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

mr said [L]
(anonymity direction not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. N. Stevens, Legal Representative.
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer.

DECISION AND REASONS

1. The appellant is a citizen of Morocco who appealed against a decision of the respondent to give directions for the appellant's removal and to refuse to grant him asylum and Humanitarian Protection in the United Kingdom. He also relied upon Articles 2, 3 and 8 of the European Convention on Human Rights.
2. His appeal was heard by Judge of the First-tier Tribunal Chana who in a decision promulgated on 14 April 2016 dismissed it on all grounds.
3. The appellant sought permission to appeal to the First-tier Tribunal. This was refused but a renewed application was made to the Upper Tribunal and granted by Upper Tribunal Judge Pitt on 4 July 2016. Her reasons for so doing were:-
"1. The appellant, a Moroccan national, appealed against the respondent's decision to refuse his asylum and human rights claim. First-tier Tribunal Judge (FTTJ) Chana dismissed the appeal on all grounds.
2. It is arguable that the FTTJ erred in stating at [50] and [52] that gay men in Morocco are not subject to violence as this is stated in the country evidence document relied upon by the appellant, from page 3 onwards of his appeal bundle. It is also arguable that the FTTJ failed to address the witness statement of Ms. [B] notwithstanding her non-attendance where she had provided identity documents and evidence of her travel to Morocco at the time that it is claimed the appellant told her that he was gay. It is arguable that the FTTJ erred at [55] in placing weight on a minor failing to claim asylum for 28 days after arrival and not disclosing his sexuality when he first came to the UK.
3. All grounds are arguable."
4. Thus the appeal came before me today.
5. Mr. Stevens relied upon the grounds seeking permission to appeal, particularly the failure to properly consider the evidence of the appellant's witness who had provided a signed witness statement confirming that the appellant had told her that he had a relationship with another boy whilst he was living in Morocco and while she was on holiday there in 2010. He went on to expand that ground and also to submit that the judge had failed to properly consider country evidence and particularly that it was common that homosexuals are physically attacked in Morocco. The third ground relates to the reliance of the judge on an age assessment report which was carried out when the appellant had just arrived in the United Kingdom prior to receiving legal advice and when it was accepted that he was only 16 years of age.
6. Mr Kotas in response to the failure of the judge to properly consider the evidence of the appellant's witness said it would have made no difference whatsoever to the ultimate outcome of the judge's decision and cannot possibly be said to be material. The judge has made findings which are "damning" and would not have been controverted by this evidence. Moreover, in finding that any attack upon the appellant was random the judge has properly taken into account the background evidence.
7. This latter submission was responsed to by Mr. Stevens who argued that the attack was not random and that the appellant was targeted consequent upon his homosexuality and that this aspect of the appellant's claim sits well into the context of the background material.
8. For all the reasons put forward by the appellant's representative I find that the judge here has materially erred. In essence though, in light of my finding in relation to the failure to consider the evidence of the appellant's witness there is no need for me to examine in any great detail the remaining grounds. The failure to take account of this evidence and to give reasons as to why weight either can or cannot be attached to it is a material error which in the context of this appeal renders the whole decision unsafe. For all the reasons put forward I find the decision of the First-tier Tribunal contains errors of law and has to be set aside in its entirety. All parties agreed that, in the circumstances, it was appropriate for the appeal to be considered and all matters decided afresh by the First-tier Tribunal.
9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b) before any judge aside from Judge Chana.
10. No anonymity direction is made.

Signed Date 16 August 2016

Deputy Upper Tribunal Judge Appleyard