Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11667/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decisions & Reasons Promulgated
On December 13, 2016
On December 15, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

MR H J P
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Miss Singh, Counsel, instructed by Barnes, Harrild Dyer
Respondent Mr Harrison (Home Office Presenting Officer)

DECISION AND REASONS

1. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

2. The appellant is an Iranian national. On November 25, 2008 the appellant entered the United Kingdom and claimed asylum. The respondent refused his claim on March 26, 2010 and when the appeal came before Judge of the First-tier Tribunal Brunnen on May 19, 2010 he refused the appellant's appeal in a decision promulgated on May 25, 2010. His appeal to the Upper Tribunal was refused.

3. The appellant then submitted a fresh claim on April 26, 2013 but the respondent refused this on August 12, 2015 under paragraphs 336 and 339D HC 395.

4. The appellant appealed that decision on August 26, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal T Jones (hereinafter referred to as "the Judge") on July 18, 2016. In a decision promulgated on September 5, 2016 he refused the appellant's appeal on asylum grounds and human rights grounds.

5. The appellant appealed the Judge's decision on September 15, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Hodgkinson on September 28, 2016. He found that it was arguable that the Judge had failed to have regard to the recent report of Professor Joffe when considering whether to depart from the recent country guidance decision of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC). In particular, he found it arguable the Judge had not considered Professor Joffe's 2016 report when considering sur plas activities and the appellant's ethnicity. The Judge specifically referred to a 2012 report only but failed to engage with the skeleton argument or the other documents.

6. The matter came before me on the above date and on that occasion I heard brief submissions from both representatives.

7. Mr Harrison reviewed the papers and conceded there was an arguable error in law because the Judge failed to consider the latest report from Professor Joffe when he considered the appellant's case against SSH.

8. Miss Singh invited me to find an error in law.

DISCUSSION AND FINDINGS

9. In granting permission to appeal Judge of the First-tier Tribunal Hodgkinson identified possible arguable errors in law.

10. Mr Harrison very fairly accepted that whilst the Judge had attempted to apply the new CG decision of SSH he had unfortunately overlooked the comments of Professor Joffe in his 2016 report. This report suggested there were still risks but the report was not before the Tribunal. The evidence was therefore not considered by the Judge and whilst the outcome may be the same I accept the joint submission that the Judge should have dealt with that report and other objective evidence before rejecting the claim.

11. Whilst SSH does not suggest a successful outcome for the appellant I accept the evidence should have been considered and if the Judge still felt the findings in SSH and the earlier case of BA (Demonstrator in Britain-risk on return) CG (Iran) [2011] UKUT 36 (IAC) stood then it would have been open for him to say as much.

12. In the circumstances I find there is an error in law.

13. Both representatives agreed that the case should be remitted to the First-tier Tribunal.

DECISION

14. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.

15. The appeal is remitted back to the First-tier Tribunal for these issues to be addressed hearing under Section 12 of the Tribunals, Courts and Enforcement Act 2007.

16. The matter should not be listed before Judge of the First-tier Tribunal T Jones.

17. A Kurdish Sorani interpreter is required.

18. The case be listed in Bradford.

Signed: Dated:

Deputy Upper Tribunal Judge Alis