Tribunal decisions

The decision

IAC-TH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10556/2015

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

[S M]
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss S. Iengar, Counsel.
For the Respondent: Mr. S. Kotas, Home Office Presenting Officer.

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka who appealed against a decision of the respondent to refuse her asylum under paragraphs 336 and 399M of the Immigration Rules HC 395 (as amended). She also appealed on Humanitarian Protection grounds and human rights grounds (Articles 3 and 8). Her appeal was heard by Judge of the First-tier Tribunal Lodge on 22 April 2016 who dismissed it on all grounds.
2. The appellant sought permission to appeal which was originally refused by Judge of the First-tier Tribunal Pedro on 3 June 2016. However, the appellant renewed her grounds of appeal to the Upper Tribunal. On 7 July 2016 her application for permission to appeal was granted by Judge of the Upper Tribunal Perkins who gave the following reasons for so doing:-
"1. The appellant is an asylum seeker from Sri Lanka.
2. The grounds, settled by Miss Jegarajah of Counsel, may not be equally meritorious but, in my judgement, they are each properly arguable.
3. It may be helpful to begin at ground 2. If it is made out then it may be that the judge has failed to consider an important strand of evidence and that the omission undermines his findings generally.
4. Ground 3 raises the case that the judge gave wholly inadequate reasons for attaching no weight at all (assuming that it was what the judge did) to a letter from a Sri Lankan member of Parliament. Arguably the suggestion that the evidence is just too good to be true is insufficient.
5. These may not be the best points and I emphasise that give (sic) permission to appeal on each ground that is raised."
3. Thus the appeal came before me today.
4. I asked Ms Iengar to deal with ground 2 first. She submitted that paragraph 23 of the judge's decision reveals a material error of fact. Consequent upon this the judge has deprived the appellant of material positive evidence and has failed to give significant weight to a key piece of evidence. Paragraph 23 of the judge's decision states:-
"I have no statements from any members of the appellant's direct family to support the appellant's contentions. I have a letter page 34 from a Sivasakthy Ananathan who claims to be a Member of Parliament for the Vanni district. He refers the family celebrating martyr's day and the consequences that followed. I do not have the original and have no way of assessing its authenticity. The rest of the letter reads, 'I have to say, like an advertisement for the appellant's asylum claim. It covers almost every important aspect of the appellant's claim. I am not inclined to give it any significant weight; it has every appearance of being concocted to assist her appeal.'"
Contrary to the judge's finding that he has no statements from any members of the appellant's direct family to support the appellant's contentions, they are at pages 48 and 50 of the appellant's bundle. She submitted that at paragraphs 48 and 50 of the appellant's bundle are two letters from the appellant's mother to firstly the Human Rights Commission and secondly the Sri Lanka Red Cross Society. These have not been taken into account by the judge in coming to his decision and as a consequence the judge has materially erred in failing to consider important evidence put forward supporting the appellant's claim. She also relied on the other grounds which I will not detail further here as in light of my findings in relation to the above issue further consideration of them becomes a redundant exercise.
5. Miss Iengar acknowledged that the grounds seeking permission to appeal relate to the asylum and Humanitarian Protection claims only and that in the event that I were to find a material error of law the findings and decision in relation to the appellant's Article 8 claim would inevitably be preserved.
6. Mr. Kotas urged me to accept that that was the position in relation to the Article 8 claim and that all findings in relation thereto should be preserved. He then referred me to paragraph 15 of the judge's decision where it is recorded that the appellant was cross-examined and said that she last had contact with her family one or two months ago. He said that that had to be linked with the judge's findings in paragraph 23 of his decision and that all the judge was saying was that he had no "witness statements" or letters to the Tribunal and that consequently it could not be said that the judge has materially erred as submitted.
7. From reading the judge's decision, taking account of the plain language used I am unable to accept the submission of Mr. Kotas. I find the judge has materially erred in failing to consider an important strand of evidence and that the consequent omission undermines his findings generally in relation to the asylum and Humanitarian Protection claim rendering them unsafe.
8. Both parties were agreed that with the exception of the Article 8 issue the appeal should be remitted to the First-tier Tribunal to be considered afresh.
9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision in relation to asylum and Humanitarian Protection is set aside and the appeal is remitted to the First-tier Tribunal to be dealt with afresh in relation to those two aspects of the appellant's appeal, pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Direction 7.2(b), before any judge other than Judge Lodge. The findings and decision in relation to the appellant's Article 8 appeal are preserved.

Signed Date 16 August 2016

Deputy Upper Tribunal Judge Appleyard