Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA106532015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th June 2015
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

T B
(ANONYMITY DIRECTION MAINTAINED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss C Ryan, Solicitor; Duncan Lewis Solicitors
For the Respondent: Mr D Mills, Senior Presenting Officer,

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Malins dismissing the Appellant's appeal against the Respondent's decision to refuse to grant refugee status and/or humanitarian protection and to give protection on the basis of his human rights. The Appellant appeals against that decision and was granted permission to appeal by Designated First-tier Tribunal Judge Murray.
2. The grounds upon which permission was granted were somewhat unclear to me. The judge granted permission in the following terms:
"The judge finds the Appellant was trafficked, (paragraph 11.1(d)). The judge goes on to narrate parts of the Appellant's evidence and explains why he does not find that the Appellant is of any interest to the authorities in Vietnam. The judge then deals with the demonstrations attended by the Appellant and finds the Appellant is not politically driven or that he has been identified by the Vietnamese authorities. The judge then deals with credibility. His comments on the 'nail technician' industry could be considered derogatory but at paragraph 12.6 he finds the Appellant's claim to be a political activist to lack credibility. The judge then deals with the expert report. He explains why he finds the Appellant's religion will not be a problem for him on return to Vietnam. The judge's error at paragraph 8(g) is not significant. There is however an error in the judge's decision in that he has not considered what will happen to the Appellant on return to Vietnam having previously been trafficked.
There is an arguable error of law in the judge's decision."
3. In considering the extent of the grant of permission I invited submissions from both Mr Mills for the Respondent and Miss Ryan on behalf of the Appellant. I drew to their attention that I was minded to follow the guidance in the Upper Tribunal's decision in Ferrer (Limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC) which states as follows at head notes (1) and (2):
"(1) In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. In this way, the judge identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which - if that Tribunal concurs - can then form the backdrop for the Upper Tribunal's subsequent case management directions.
(2) Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant's grounds, the judge should make this abundantly plain, both in his or her decision....and by ensuring that the Tribunal's administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal."
4. Having heard from Mr Mills and Miss Ryan on the ambit of the grant of permission my view was that Designated First-tier Tribunal Judge Murray did not intend to limit the grant of permission. This is plainly so because to my mind she has identified the grounds upon which she considers there may be a stronger prospect of success and has identified the likely ambit of the proceedings to assist as far as possible, and it is not abundantly plain from her decision that she intended to limit the grant of appeal. Furthermore the Tribunal administrative staff have not at any rate sent out any notice informing the applicant of a right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant had been unsuccessful in the application to the First-tier Tribunal. These factors all lead me to my conclusion that the grant of permission was not a limited one and permission to appeal was granted on all grounds.
Error of Law
5. At the close of submissions, I indicated that I would reserve my decision which I shall now give. I find that there were errors of law in the decision, such that it should be set aside. My reasons for so finding are as follows.
6. In respect of ground 1, the Secretary of State has already conceded in her Rule 24 response that the assessment by the First-tier Tribunal Judge was flawed as she failed to have regard to the risk on return that may result as a consequence of her finding that the Appellant had been trafficked.
7. In respect of ground 2 and the commentary on witnesses being "nail technicians", as already stated by Judge Murray in granting permission, these terms and comments could be considered derogatory, which is something that the Tribunal should guard against. Whilst the judge granting permission thought that the ground related to credibility it also plainly extended to an appearance of fairness. Any error that may arise from that commentary was not, on its own, fatal to the determination but in my view has added to the materiality of the overall error of law outcome.
8. In respect of ground 3 and the treatment of religion, it is correct that the judge has failed to consider that the Appellant was a member of the UBCV (United Buddhist Church of Vietnam) and the effect that that membership of an unregistered religion would have for the Appellant upon return to Vietnam.
9. Finally in respect of ground 4 and the expert report it is correct that the judge has dealt with the expert report at paragraphs 12.7 and 12.8. However, given the error identified at 12.8(c) in relation to the extent of the Appellant's religious past and beliefs, it cannot be said that the judge was fully apprised of all the facts when she made her finding at paragraph 12.8(c).
10. In those circumstances I find that there were errors of law in the decision such that it should be set aside. In light of my findings on the above grounds of complaint, I set aside the decision and findings of the judge in their entirety.
Decision
11. The appeal to the Upper Tribunal is allowed.
12. The decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal, to be heard by a differently constituted bench.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini