Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10014/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 17 January 2017
On 19 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

PUSHPANATHAN [T]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr A Devlin, Advocate, instructed by McGlashan MacKay, Solicitors

For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Sri Lanka, born on 26 July 1986. He came to the UK as a student in February 2011. He sought asylum in January 2012 but this was refused. FtT Judge Khan dismissed his appeal by a decision promulgated on 1 May 2012 (AA/01998/2012), and all appeal rights were exhausted by August 2012.
2. The appellant returned voluntarily to Sri Lanka in January 2013. He left Sri Lanka again in March 2014 and appears to have arrived back in the UK in July 2014.
3. A screening interview in respect of a renewed asylum claim took place on 27 July 2014. The respondent rejected that claim on 7 November 2014. FtT Judge Clarke dismissed the appellant's appeal be a decision promulgated on 9 August 2016.
4. The appellant sought permission to appeal on closely argued grounds (12 paragraphs over 9 pages). A major theme (paragraphs 4 - 5, developed in several sub-paragraphs) is that the Judge Clarke uncritically followed the decision of Judge Khan, although it contained patent errors of law and reached conclusions which no judge could properly have made. At paragraph 6 the grounds turn to an adverse finding at paragraph 85, based on the appellant's failure to mention at a medical examination torture marks on his penis and buttocks, arguing that no adverse inference as to credibility could rationally be drawn, when the [prior] existence of those torture marks was uncontentious and objectively verifiable. Further criticisms are developed at paragraphs 7 - 10 of the treatment of the medical evidence.
5. The FtT refused permission. The application was renewed on the same grounds to the UT, 3 days late. On 28 November UT Judge Perkins extended time and granted permission, observing as follows:
One of my reasons for extending time is that the appellant has a scar on his penis described as "highly characteristic of being caused by a cigarette burn" (page 40, inventory of productions 1).
Judge Clarke followed the unchallenged decision of Judge Khan but even allowing for that it seems to me that the possibility of the injury being accidental is so slim that I am not presently confident in the decision that the appellant has not been tortured.
That said, the FtT's decision is considered and may stand up to scrutiny and the appellant has not helped his case by returning to Sri Lanka at a time when he claimed to be at risk, but I give permission to argue each ground.
6. Mr Matthews helpfully indicated the respondent's position at the outset. It was not conceded that there was any error in the approach Judge Clarke took to the decision of Judge Khan. That stood unappealed, and must have been the right starting point. The arguments in the grounds had not been put to Judge Clarke, so the challenge came far too late. However, there was force in certain other grounds. Paragraph 8 of the grounds disclosed an error of approach to medical evidence, under reference to KV (scarring - medical evidence) [2014] UKUT 230. Paragraph 6 disclosed a point by which it was difficult to justify the adverse conclusion at paragraph 85 of the decision. Paragraph 12 made a justifiable point about isolating an item of evidence (an affidavit) from the rest of the evidence and turning to it only after reaching an adverse conclusion, "putting the cart before the horse". The extent of error conceded was enough to require a fresh hearing.

7. In light of the approach of the respondent, it is sufficient to say that it might have been difficult for the appellant to show error in the treatment of the decision by Judge Khan, having failed to advance that matter in the FtT; but it will now be for another judge to deliberate thereon, based on submissions yet to come.
8. The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said on that occasion. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
9. The member(s) of the FtT chosen to consider the case or not to include Judge Clarke or Judge Khan.
10. No anonymity direction has been requested or made.

17 January 2017
Upper Tribunal Judge Macleman