Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10922/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 5th April 2017
On 26th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MR VITALII LOTSMAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Khan, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Ukraine born on 12th September 1967. Dependent upon this appeal is not only the appeal of the Appellant but also his spouse born on 15th March 1986. The Appellant’s immigration history is set out at paragraphs 6 to 13 of the Notice of Refusal. The Appellant was issued with a visa on 15th June 2014 for a visit, left the Ukraine on 21st July 2014, and claimed asylum on arrival. The Appellant’s basis for claiming asylum was that he would be called upon to serve in the Ukrainian Army which would be against his will. The Appellant’s claim for asylum was refused by Notice of Refusal dated 23rd July 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Pickup sitting at Manchester on 11th July 2016. In a decision and reasons promulgated on 18th July 2016 the Appellant’s appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
3. Grounds of Appeal were lodged to the Upper Tribunal. Permission to appeal was refused by First-tier Tribunal Judge Kimnell on 9th August 2016. Renewed Grounds of Appeal were lodged on 23rd August 2016.
4. On 16th September 2016 Upper Tribunal Judge Grubb granted permission to appeal. Judge Grubb noted that the grounds did not challenge the judge’s finding that the Appellant is not a draft evader from Ukraine, nor that he does not have a conscientious objection to military service. However, the judge also found that the Appellant would not refuse to serve. Judge Grubb considered it was arguable that the judge had failed to give adequate reasons for that finding and/or acted unfairly in reaching it when, it would appear, this was not an issue in dispute in the refusal letter or at the hearing. Given that the judge’s finding that PS (prison conditions; military service) Ukraine CG [2006] UKAIT 00016 should be followed that prison conditions in Ukraine breached Article 3, he considered it was arguable that the Appellant might have established an Article 3 risk if he would refuse to serve for whatever reason.
5. On 6th October 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response states that in a comprehensive determination the First-tier Tribunal Judge had clearly considered all of the evidence presented and made findings of fact which were open to him. The fact that the Appellant was not extensively cross-examined did not obviate the requirement for the judge to analyse evidence as a whole and come to reasoned conclusions on that evidence, and that is what the judge had clearly done. The response noted that Judge Pickup had considered the Appellant’s objection to military service on account of his Christian beliefs and had applied the case of PS and concluded, as was open to him, that the Appellant would not be at risk on return.
6. It is on that basis that the appeal comes before me to decide whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Ms Khan. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison.
Submissions/Discussion
7. I am referred, as a starting point, by Ms Khan to the authority of VB and Others (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079. It was accepted that that country guidance authority was not before the First-tier Tribunal Judge and that it is authority for stating that if a person is likely to be detained and imprisoned in the Ukraine, that would subject a person returned to be detained or imprisoned to a breach of Article 3 of the ECHR. However, the main thrust of the Grounds of Appeal, and of the submissions made by Ms Khan, are there is absolutely no assessment whatsoever made by the First-tier Tribunal Judge of the evidence of the Appellant’s spouse. She acknowledges there is reference to Mrs Liliia Lotsman giving evidence and relying on her witness statement of 29th June 2016 as her evidence-in-chief. That is the only reference she points out that the judge makes to her evidence but there is no assessment of it. She submits that had that evidence been considered, then the judge may very well have come to a different conclusion.
8. Mr Harrison, in very conciliatory but appropriate concessions, agrees that it is not open to the judge to simply step over the evidence of Mrs Lotsman or ignore it, and that the judge must consider it before reaching his decision and give an explanation as to whether or not he is relying upon it and if not, why not. He accepts that this has not been carried out and that therefore there is an error of law.
9. Ms Khan goes on to submit that the First-tier Tribunal Judge had failed to consider the Appellant’s evidence regarding the reasons why he would refuse to serve in the military and that the Appellant was not afforded the opportunity to respond to those concerns before the determination was made. She notes that the Appellant included in his bundle two letters, at pages 114 and 115, from priests in the UK in support of his participation in the church and submits that the First-tier Tribunal Judge failed to consider or address this evidence of the Appellant’s religious beliefs. Further, she submits that the judge failed to consider paragraphs 21 and 22 of the expert report from Professor Mark Galeotti which cites evidence of prosecutions for refusing to join the army. She points out that by leaving Ukraine the Appellant has done what people would do generally in his situation and that there is a fairness point here to be considered, particularly bearing in mind that the First-tier Tribunal Judge has accepted the Appellant would be at risk of being mobilised on return in light of the background country evidence.
10. Again, in a very sympathetic response, Mr Harrison acknowledges that at paragraph 52 of the First-tier Tribunal Judge’s decision he has actually missed the point of what being a conscientious objector is, pointing out there had been many examples during world wars of conscientious objectors based not on religious grounds, but on their convictions.
The Law
11. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
13. Whilst, to a certain extent, the judge was unquestionably placed in a difficult position because the updated country guidance authority was not available and did not have, as I now understand, the benefit of the additional report from the Immigration and Refugee Board of Canada on military service before him, both of which may give some objective support to the position in which the Appellant finds himself, the main areas upon which I am satisfied that there are material errors of law in the First-tier Tribunal Judge’s decision are on a more fundamental basis. I accept that it is not necessary for a judge to recite every piece of evidence that is before him but if oral testimony is given it is at least incumbent upon a judge to not only make reference to that testimony but to say why it is, or is not, found to be credible or of assistance or not to an Appellant’s appeal. The mere reciting that the Appellant’s wife gave evidence is not something that the judge can merely ignore. He is required to assess it and it is necessary for her evidence to be considered in a transparent way. In such circumstances the failure to do so constitutes a material error of law. That is not to say that when the matter is reheard a different judge may not come to the same conclusions, but it was incumbent upon the judge to give Mrs Lotsman’s evidence due and proper consideration and to give reasons if he were to reject it as to why.
14. There are two other areas within the decision which also show errors of law. I agree with the submissions made by Ms Khan, and indeed supported by Mr Harrison, that at paragraph 52 the judge has misinterpreted what constitutes being a conscientious objector for the purpose of military service and that that does not need to be linked to religious beliefs. Whether that constitutes a material error of law, of course, is another matter. Further, I accept that there is a fairness point in the submissions made by Ms Khan as to the finding in the manner in which the judge construed this was never actually put to the Appellant with regard to the evidence set out in the expert report of Professor Galeotti.
15. In all the circumstances the correct approach is to find that there are material errors of law in the decision of the First-tier Tribunal Judge and for all the above reasons to set aside the decision and to remit the matter back to the First-tier Tribunal for rehearing. Directions are attached for the rehearing of the matter.
Notice of Decision

The decision of the First-tier Tribunal Judge discloses a material error of law and is set aside. Directions are given for the rehearing of this matter as below.

(1) On the finding that there is a material error of law in the decision of the First-tier Tribunal Judge the decision of the First-tier Tribunal is set aside with none of the findings of fact to stand.

(2) The matter is remitted to be heard before any First-tier Tribunal Judge sitting at Manchester on the first available date 28 days hence with an ELH of three hours, other than Immigration Judge Pickup.

(3) That there be leave to either party to file and serve an additional bundle of both subjective and/or objective evidence upon which they intend to rely at least seven days prior to the restored hearing.

(4) That a Ukrainian interpreter do attend the restored hearing.

No anonymity direction is made.

Signed Date 20th April 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 20th April 2017

Deputy Upper Tribunal Judge D N Harris