Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10576/2015

THE IMMIGRATION ACTS

Heard at Birmingham ET
Decision & Reasons Promulgated
On 7 February 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

RD
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms H Masih, counsel instructed by Braitch RB Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Lodge, promulgated on 8 August 2016. Permission to appeal was granted by Upper Tribunal Judge Kebede on 6 October 2016.
Anonymity
2. No direction has been made previously, however I consider there are good grounds for granting one now, given the nature of the appellant's case which concerns the monitoring of journalists by the Russian authorities.
Background
3. On 13 January 2015, the appellant entered the United Kingdom. He applied for asylum at the screening unit three days later. The basis of his claim was that he was of Chechen ethnicity and a Muslim. Dependent on the appellant's asylum claim are his wife, who is a Jordanian national and their four children. The appellant stated that he worked for the Chechnya News Agency and also wrote online articles under a pen name. He was particularly critical of Ramzan Kadyrov, the Chechen leader as well as the latter's father. The appellant left Chechnya for Azerbaijan in 2000 but following incidents which he believed involved Russian military and a deteriorating situation in Azerbaijan for journalists, he left to live in the United Arab Emirates (UAE). The appellant continued his journalism in the UAE however, owing to a number of incidents, he understood that his presence there came to the attention of Kadyrov or those linked to him. Since the appellant's arrival in the United Kingdom, there had been an attempt to abduct him by people stating that they worked with Kadyrov.
4. The asylum claim was refused on 17 July 2015. The respondent confirmed that the appellant's nationality was accepted as Russian owing to his previous visa application. It was also accepted that there was a refugee Convention reason, in that the claim was based on politics. No other aspects of the appellant's claim were accepted owing to apparent discrepancies in his account. Alternatively, the Secretary of State was of the view that the appellant could seek the protection of the Russian authorities or relocate. With regard to Article 8, none of the requirements of the Rules were said to be met and it was considered that there was an absence of exceptional circumstances. In particular, it was said that the appellant's wife could apply for a visa to enter Russia.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, the appellant gave evidence along with two witnesses. There was also expert evidence regarding the security situation in Russia. The judge remarked on the paucity of journalistic work produced by the appellant; an inconsistency of an aspect of his account and a number of matters which the judge considered were implausible. The judge concluded that the appellant could re-integrate in Russia and the whole family would return together.
The grounds of appeal
6. The grounds of appeal in support of the application to the First-tier Tribunal argue that the judge failed to weigh the evidence of the witnesses; that the judge was dismissive of subjective evidence submitted by the appellant; he failed to consider material evidence before him; that there had been a failure to consider the expert's evidence; a failure to consider incidents relied upon by the appellant and criticised the judge's comments regarding the plausibility of aspects of the appellant's account.
7. The grounds to the Upper Tribunal criticised the decision of Designated Judge Manuel in refusing permission to appeal. The original grounds were reiterated, in brief.
8. Permission to appeal was granted on the following basis;
2. There is arguable merit in the assertion in the grounds that the judge, whilst making adverse credibility findings against the appellant and rejecting his claim to have been a journalist critical of the Chechen regime, arguably failed to consider relevant documentary evidence that was before him and arguably failed to make findings on the evidence of the witnesses.
3. All grounds are arguable.
9. The respondent's Rule 24 response, received on 21 October 2016, indicated that the appeal was opposed. The grounds were described as mere disagreement. It was said that the judge was fully aware of the central issue and acknowledged the evidence which supported the appellant's position.
The hearing
10. When this matter came before me, Mr Mills wished to clarify the respondent's position in relation to this appeal. He acknowledged that the Rule 24 response opposed the appeal but that he struggled to maintain that opposition given the judge's findings as to the lack of evidence. He advised me that when one looks in the appellant's bundle, that evidence is there. By way of example he referred to [35] of the judge's decision, where the appellant was criticised for the lack of evidence from the Daymokh agency, while ignoring the evidence at page 32 of the respondent's bundle. Mr Mills contended that the judge materially erred in his credibility findings. At this point I indicated that my preliminary view was that the grounds of this appeal were fully made out, the appellant had not a fair hearing and therefore the matter should be remitted to the First-tier Tribunal for a de novo hearing. Mr Mills agreed with that approach.
11. Ms Masih took instructions from the appellant regarding the venue of any future hearing. She advised me that the appellant's witnesses had attended, however no interpreter had been requested. She therefore concurred with the appeal being remitted to the First-tier Tribunal.
Decision on error of law
12. As conceded by Mr Mills, the judge erred in criticising the appellant for failing to provide evidence that he worked as a journalist, using a pseudonym for the Daymohk website. That evidence was in the respondent's bundle which was before the judge. That was a material error in view of the judge's comment at [35]. The judge made several references to there being a paucity of evidence supporting the appellant's claim to be a journalist or that he worked under a pseudonym. Likewise, the judge's dismissal of the appellant's press card on the basis that it was only in Russian was flawed, in view of the fact that it was also written in English.
13. There were a significant number of other pieces of evidence which the judge failed to consider, all of which are accurately set out in the grounds of appeal to the First-tier Tribunal.
14. The judge further erred in failing to assess the evidence of two witnesses and if it was rejected to state why that was the case. The evidence of the witnesses was relevant in that it addressed discrete aspects of the appellant's account.
15. The decision of the First-tier Tribunal is therefore unsafe and is set aside, with no findings preserved.

Conclusions

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Birmingham IAC, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Lodge.
An interpreter in the Russian language is required.

The respondent is directed to produce at the hearing the original documents sent by the appellant under cover of a letter dated 7 July 2015.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed
Date: 10 February 2017

Upper Tribunal Judge Kamara