Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11325/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 9th August 2016
On 31st August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

IMRAN [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mohzam, Solicitor of Burton & Burton Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. Before the Tribunal the Secretary of State becomes the respondent. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
Background
2. On 10th June 2016 Judge of the First-tier Tribunal Heynes gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal S D Lloyd in which he dismissed the appeal on asylum grounds but allowed it on human rights grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, an adult citizen of Zimbabwe.
Error on a Point of Law
3. The grounds of application by the Secretary of State do not take issue with the judge's dismissal of the asylum and humanitarian protection claims but contend that the judge's favourable conclusions in relation to the human rights claim are materially flawed. In particular it is contended that the judge's conclusion (paragraph 43) that the respondent was alleging dishonesty and fraud by the appellant is wrong. The respondent made no such allegation. The issue of whether or not the appellant had, himself, made phone calls to the Home Office about the progress of his applications made in 2006 and 2007 was simply a matter of credibility. In this respect it is also argued that the judge had applied an inconsistent approach to the evidence by suggesting that the operators who allegedly took the telephone calls from the appellant had not been produced as witnesses and yet the aunt, who allegedly made the calls and not the appellant, was not required to attend the hearing and would "impose too high a burden on the appellant". Further, the judge was wrong to conclude (paragraph 45) that screen prints from the respondent's IT system did not confirm that checks were made to confirm the identity of the caller when the appellant's date of birth and address had been noted.
4. The respondent concludes by indicating that, if the First-tier Judge had applied the correct burden of proof consistently to both parties taking into consideration the evidence provided by the respondent, then it was not open to the judge, on a balance of probabilities, to conclude that the appellant did not make the phone calls alleged. However, the respondent concedes that the issue of the phone calls was, potentially, a determinative issue in the application for leave to remain outside the Rules.
5. At the hearing before me, Mr Bates emphasised that the judge had stated (paragraph 39) that the evidential issue was important but (paragraph 40) simply identified it as a credibility issue. Further, the judge clearly imposed the wrong burden of proof on the respondent throughout as if an issue of fraud had been raised.
6. Mr Mohzam drew my attention to the appellant's response of 25th July 2016 in which it was contended that the First-tier Judge conducted himself appropriately and was entitled to find the appellant to be a credible witness. The response also sought permission to adduce fresh evidence by way of a detailed witness statement to support the appellant's case. In this respect I reminded Mr Mohzam that the initial issue was whether or not the decision showed a material error on a point of law in relation to the judge's handling of the human rights claim. That issue would require an examination of the judge's approach to the relevant evidential issue rather than by the production of further evidence to support the appellant's evidential assertions.
Conclusions
7. The judge's approach to consideration of the credibility issue of the phone calls allegedly made in 2006 and 2007 is in error. Paragraph 7 of the decision shows that the judge overruled an objection by Mr Mohzam, at the first hearing, to the respondent producing the screen prints to show that the appellant contacted the Home Office a number of times towards the end of 2006 and 2007. In the second sentence of the same paragraph the judge identified the documents as "of importance to the issue of the appellant's credibility". However, the judge subsequently deals with that credibility issue (paragraph 43) as if it were an issue of dishonesty and fraud by the appellant with the burden of proof resting upon the respondent throughout.
8. The issue of fraud was not raised in the refusal nor does the decision show that the matter was put to the judge by the Presenting Officer on the basis that the appellant had denied that he had contacted the Home Office. As the respondent contends, the matter was simply a credibility issue to be concluded applying the lower standard of proof. This is not a case which falls within the guidance of the Court of Appeal in AA (Nigeria) [2010] EWCA Civ 773 where there have been specific allegations of the submission of false information or documents. In any event, even if the relevant circumstances in this appeal could be said to come within that guidance, the burden of proving fraud does not rest upon the Secretary of State throughout as the Court of Appeal commented in Shehzad [2016] EWCA Civ 615.
9. The error of the judge's approach to the credibility issue is also highlighted by the judge's comments in paragraph 42 of the decision where he indicates: "it would be unfair to impose too high a burden on the appellant to provide counter-evidence ...". That was given as an erroneous reason for not taking into consideration that the appellant had not called as a witness the relative who was said to have made the calls. Further, the judge was also in error in stating (paragraph 45) that the records produced by the respondent did not show that any checks had been carried out to confirm the identity of the caller when the screen prints revealed the details of the caller. It is not possible to say that, had the judge applied the burden of proof correctly, then his favourable decision would have remained the same.
10. The errors I have identified are such that it will be necessary for the human rights issues to be considered again with the hearing of fresh evidence. At the hearing before me representatives indicated that, if that were the case, the matter should be remitted to the First-tier Tribunal for the hearing of the human rights appeal afresh. On the basis that the consideration of human rights issues will involve fresh evidence, I conclude that remittal to the First-tier Tribunal will comply with the Practice Statement of the Senior President of Tribunals dated 25th September 2012 at paragraph 7.2(b).
11. The decision of the First-tier Tribunal in relation to the asylum appeal shall stand. The decision of the First-tier Tribunal in relation to the human rights claim shows errors on points of law and is set aside. It is remitted to the First-tier Tribunal for hearing afresh.
Anonymity
The First-tier Tribunal did not make an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 nor do I consider one to be appropriate in the Upper Tribunal.
DIRECTIONS
12. The remitted hearing will take at place at the Birmingham Hearing Centre on a date to be specified by the Resident Judge.
13. No interpreter will be required for the hearing unless representatives indicate to the contrary.
14. Representatives for the appellant should submit a consolidated bundle of documents relating to the human rights issue at least seven days before the remitted hearing date.
15. The remitted hearing should not take place before Judge S D Lloyd.

Signed Date 31st August 2016

Deputy Upper Tribunal Judge Garratt