Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aA/10079/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 20 October 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

Secretary of State FOR THE HOME DEPARTMENT

Appellant
and

MR NEWMAN LEE RICHARD

aka KOTASANAI NEWMAN CHIPIKA
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Ms S Javed of Thompson & Co Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision promulgated on 21 July 2016 of First-tier Tribunal Malone.
2. The appeal before Judge Malone was on asylum and human rights grounds. The background to the matter is that the appellant claimed asylum whilst in the possession of a South African passport in the name of Newman Lee Richard. On the basis of that passport and other matters the respondent's conclusion was that the appellant was a South African national with a valid South African passport and she made the assessment of his protection claim on the basis of return to South Africa finding against him in all material regards.
3. When the matter came before Judge Malone the evidence of the appellant and his brother indicated that the appellant is, in fact, Kotsanai Newman Chipika, a national of Zimbabwe.
4. I should indicate at this point that the respondent objected to the findings of the judge that the appellant is of Zimbabwe nationality and not from South Africa. This was her first ground of appeal but it was rejected in the permission application of 10 September 2016 and Mr Melvin confirmed that the respondent was not renewing that aspect of the grounds. The finding of Judge Malone that the appellant is Kotsanai Newman Chipika and is a national of Zimbabwe stands, therefore, and will be taken as extant in any further consideration of this matter.
5. However, having made those findings Judge Malone went to allow the appeal not on asylum or human rights grounds but because he found the respondent's decision was "not in accordance with the law."
6. The reasoning for this is set out at [62]-[66]:
"62. It follows, therefore that there is no lawful basis entitling the Respondent to remove the Appellant to South Africa. Moreover, she has refused his protection and human rights claim on a flawed basis, finding wrongly that he is a South African national.
63. Further, the Respondent expressly omitted any consideration of whether the Appellant would be at risk on removal to Zimbabwe. The Refusal Letter included the following statement:
'No considerations are paid to any risks you may encounter if returned to Zimbabwe.'
64. As a Zimbabwean national, the Appellant can, prima facie, be removed there. However, the Respondent has refused his protection and human rights claims without considering, as she should have done, what might happen to him on removal to Zimbabwe. She has not decided whether he would be persecuted or at risk of ill-treatment contrary to Article 3.
65. Having read the papers in this matter, I consider it unlikely that the Appellant would be at risk on removal to Zimbabwe. In my judgment, large parts of his account do not bear scrutiny. But, given the fact that a sizeable amount of evidence has been put in by the Appellant which the Respondent has not yet seen and the fact that the Respondent has failed to carry out the fact-finding exercise and analysis she should have done as to what might happen to him on removal to Zimbabwe, I have come to the conclusion that I should not proceed to carry out my own analysis.
66. I find that the Respondent's decision is not in accordance with the law because she has failed to carry out the essential exercise of assessing whether, on removal to Zimbabwe, he would be at real risk of persecution or ill-treatment contrary to Article 3 on a premise, in accordance with my finding, that he is a Zimbabwean national.
67. I therefore allow this appeal as the Respondent's decision is not in accordance with the law. That being so, the Appellant awaits a lawful decision from the Respondent on his protection and human rights claims which remain outstanding. Her decision will have to take in account the Appellant's claimed sur place activities."
7. The respondent's second ground of appeal is that there was no jurisdiction for the judge to allow this appeal as not in accordance with the law. The decision here was dated 22 June 2015 and was therefore made under the most recent version of the appeal provisions set out in the Nationality, Immigration and Asylum Act 2002. These state as follows at s.84 t0 s.86:

84 Grounds of appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds-

(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;

(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds-

(a) that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations under the Refugee Convention;

(b) that the decision to revoke the appellant's protection status breaches the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection.

85 Matters to be considered

(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84 against the decision appealed against.

(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4) On an appeal under section 82(1) against a decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

(6) A matter is a "new matter" if-

(a) it constitutes a ground of appeal of a kind listed in section 84, and

(b) the Secretary of State has not previously considered the matter in the context of-

(i) the decision mentioned in section 82(1), or

(ii) a statement made by the appellant under section 120.

86 Determination of appeal

(1) This section applies on an appeal under section 82(1) (2) The Tribunal must determine-

(a) any matter raised as a ground of appeal, and
(b) any matter which section 85 requires it to consider."
8. It will be clear from the provisions of s.84-s.86 that the Appellant was not entitled to appeal on the ground that the respondent's decision was not in accordance with the law. Nothing gives authority to the Tribunal to allow an appeal on any ground other than those set out at s.84.
9. It is therefore my conclusion that there was no basis in law for the appeal to be allowed as not in accordance with the law. Albeit an adjournment may have been required, it was incumbent on the First-tier Tribunal to make a decision on the grounds argued, namely that the appellant was in need of international protection under the Refugee Convention and the ECHR. The failure to do so was a material error requiring the decision to be set aside and re-made.
10. The parties before me were in agreement that this had to be conducted by the First-tier Tribunal where there were no findings at all other than the extant finding as to the appellant's correct identity. There was some discussion as to the advisability of the Secretary of State producing a further decision letter addressing the new factual basis of the appellant being a Zimbabwe national but I accepted that this could not be something that the Tribunal had power to direct. It will be for the Secretary of State to decide how she wishes to put forward her objections to the appellant's asylum claim either before or at the remaking of this appeal in the First-tier Tribunal.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law to the limited extent set out above and will be remade in the First-tier Tribunal.

Signed: Dated: 20 October 2016
Upper Tribunal Judge Pitt