Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11293/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 20th October 2016
On 29th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MRS S.F.O
(ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Ms S. Rodgers, IAC Limited.
For the Respondent: Mrs R. Petersen, Home Office Presenting Officer.

DECISION AND REASONS
1. The appellant has been given permission to appeal to the Upper Tribunal the decision of First-tier Tribunal Judge Hanbury. Following a hearing on 4 August 2016 the First-tier Tribunal dismissed the appellant's appeal.
2. The appellant is a national of Nigeria. She came to the United Kingdom in 2012 on a visit visa along with her daughter and then overstayed. She subsequently had another child in the United Kingdom. She then made a claim for protection in 2014 principally based upon a fear of her in-laws and the possibility her daughter would be forced to undergo FGM.
3. Her claim was refused. It had been accepted by the Competent Authority that she was a victim of sexual exploitation and servitude in Nigeria. However it was not accepted that she had a genuine fear on return. Even if this were accepted the respondent took the view that there was sufficiency of protection and localised difficulties could reasonably be avoided by relocation.
4. First-tier Judge Hanbury at paragraph 18 mentions being referred to a Social Services report in the appellant's bundle at page 37 as suggesting she suffered a high degree of anxiety and fear of retribution if returned to Nigeria. It was submitted that she needed a support network which would not be available in Nigeria.
5. Under the heading `Findings and Reasons' at paragraph 20 of the decision the judge referred to a Social Services report contained at page 45 of the appellant's bundle. The judge recorded `Unfortunately, only the odd pages of that report have been photocopied for me. Nevertheless I have got the "flavour" of that report.
6. Permission to appeal to the Upper Tribunal was granted that it was arguably an error in law for the judge to make findings when only part of the report was available.
7. I checked the documents in the file and noted an appeal bundle on behalf of the appellant for use in the First-tier Tribunal with a covering letter dated 26 May 2016. It refers to a social worker's report dated January 2015 and indicates the representatives were seeking an update. The index to the bundle indicates reports on both children paged 37 through to 54. However, when the bundle is opened only pages 37, 39, 41 43, 44, 46, 48, and 50 have been reproduced.
8. I asked both representatives if they had any information as to whether at the time of hearing the representatives and Judge were aware that the report was incomplete. Ms Rodgers who appears for the appellant as she had in the First-tier Tribunal advised me that at the hearing there was no reference to the report being incomplete. The presenting officer, Mrs Petersen, was able to advise that there was no note on file of any report being incomplete. Ms Rodgers was able to provide me with a full copy of both reports. I note amongst the missing pages is a section on parenting capacity relating to the first appellant which describes her as struggling emotionally and using a counsellor and being frequently tearful. Another missing page refers to concerns about her motivation in supporting her children to visit their father.
9. Had all of the parties been aware at the hearing that the full report was not available and decided to proceed then I would not have found an error of law. However it would appear likely that the judge believed the full report was contained in the papers and it was only subsequently, when preparing the decision, the omission was noted. The judge is not to be faulted because there is limited time to read a file in advance and the responsibility lies with the appellant's representatives to probably prepare bundles. Nevertheless a procedural irregularity has occurred in that part of the evidence intended to be advanced had been omitted. Mrs R. Petersen did not seek to robustly oppose the submissions made on behalf of the appellant.
10. The Judge had recorded that the appellant was a vulnerable individual but that internal relocation was viable. It may be that the missing pages would not have made any material difference to the outcome but in the interests of justice it is important that all of the evidence meant to be placed before the judge in fact was. It cannot be said that the missing material was so irrelevant that it could be disregarded. For this reason a material error of law has occurred. Consequently the decision of First-tier Tribunal Judge Hanbury dismissing the appeal cannot stand. Because of the factual evaluation necessary the appeal is to be remitted for a de novo hearing in the First-tier tribunal.

Decision
The decision of First-tier Tribunal Judge Hanbury dismissing the appeal contains a material error of law and cannot stand.
The appeal is remitted for a de novo hearing in the First-tier Tribunal

Deputy Upper Tribunal Judge Farrelly

Directions.
1. List for a de novo hearing in the First-tier Tribunal.
2. The appellant's representatives are to prepare a new appeal bundle with the items paged and tabbed and a clear index. They should advise of any need for an interpreter.
3. The parties are referred to the recent country guidance given in HD (Trafficked women) Nigeria CG [2016] UKUT 00454(IAC)