Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11391/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 14 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

m a a t
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by J M Wilson
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The First-tier Tribunal directed anonymity and, because the issues in this appeal are sensitive, I maintain that decision, albeit under rule 14 of the 2008 Upper Tribunal Procedure Rules. I set out the full terms of my order below.
2. At the start of the hearing, Mr Mills and Mr Pipe informed me that they were satisfied the decision and reasons statement of First-tier Tribunal Judge Thomas, that was promulgated on 26 July 2016, contained legal errors requiring it to be set aside and remade. Given the nature of the errors and the changing situation in Libya, both parties seek for the appeal to be remitted to the First-tier Tribunal to be determined on all matters.
3. As this is not the end of the appeal, it is appropriate I record the reasons why I agree to what is in fact a concession. The appellant’s principle complaint is that Judge Thomas failed to consider and make findings on all material evidence. After examination of the appeal file, it transpires that pages 59 to 99 of the appellant’s main bundle did not reach the appeal file and therefore could not be considered by Judge Thomas. Those pages remain absent from the appeal file and should be provided, if the appellant continues to rely on them, for the remitted hearing.
4. Mr Mills did not concede that the appellant’s other complaints were sound. The appellant’s other complaints relate to Judge Thomas’s findings in relation to the following two matters and argues that the findings are not sustainable. First, whether the appellant’s step-brother was a government minister or just a teacher, and second, whether the appellant’s child would be at risk on return because of being an American citizen. The appellant argues that the judge failed to have proper regard to all the evidence submitted. Of course, the fact much of the appellant’s evidence was missing is a strong indication there may be errors in Judge Thomas’s approach and I have decided it is necessary to remit these issues as well.
5. Mr Mills and Mr Pipe acknowledged that Judge Thomas heard this appeal before the Upper Tribunal heard and reported FA (Libya art 15c) CG [2016] UKUT 00413 and that she was not assisted by it. Both acknowledged that nevertheless Judge Thomas should have been aware that she was not bound by the earlier country guideline cases because of the significant changes to the country situation, as identified in the evidence and argued by Ms Bhachu, who previously represented the appellant. However, it is apparent that the additional country information was contained in the missing pages of the appellant’s bundle. Again, the absence of the evidence explains but does not excuse the error.

Decision regarding the appeal
The appellant’s appeal to the Upper Tribunal is allowed because the decision and reasons statement of First-tier Tribunal Judge Thomas contains legal errors which require me to set it aside.
I direct that the appeal is remitted to the First-tier Tribunal for a fresh decision before a judge other than Judge Thomas. Nothing is preserved from the earlier decision and reasons.
The parties are at liberty to provide up to date evidence on any matter in issue if such evidence is provided at least 7 calendar days before the remitted hearing.
Other directions and case management decisions may be made by the First-tier Tribunal.

Order regarding anonymity
I make the following order. I prohibit the parties or any other person from disclosing or publishing any matter likely to lead members of the public to identify the appellant or any member of his family. The appellant can be referred to as “MAAT”.

Signed Date 17 March 2017

Judge McCarthy
Deputy Judge of the Upper Tribunal