Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11683/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 5th December 2016
On 11th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

TA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V James of Counsel instructed by J D Spicer Zeb Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. On 15th March 2016 Judge of the First-tier Tribunal Saffer gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Asjad who dismissed the appeal on all grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, a female adult citizen of Eritrea.
2. The matter then came before Deputy Upper Tribunal Judge Alis on 5th May 2016 who decided that the decision of the First-tier Tribunal involved the making of an error on a point of law. It was then adjourned to a further hearing before the Upper Tribunal for the re-making of the decision of the First-tier. On 25th October 2016 Principal Resident Judge Dawson made a transfer order to allow for the re-making of the decision to be heard by a differently constituted Tribunal. On that basis, the matter came before me on 5th December 2016.
Error on a Point of Law
3. Deputy Upper Tribunal Judge Alis decided that the decision of the First-tier Tribunal contained an error on a point of law for the following reasons:
"13. The Judge had conflicting evidence on the current position in Eritrea. The evidence the Judge relied on was criticised and undermined by other evidence and the Judge's failure to consider the same undermined the whole decision. There was an error in law.
14. Mr Mills handed me a letter dated December 1, 2015 signed by Principal Resident Judge Dawson in which the Tribunal made it clear that Eritrean appeals in the Upper Tribunal were to be stayed pending a future Country Guidance cases. Having checked with the Principal Resident Judge I agreed to adjourn the matter until such time as the Tribunal listed such appeals.
DECISION
15. 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 original decision and adjourned the matter for a further substantive hearing on a date to be fixed."
Re-Making the Decision
4. When the matter came before me the Tribunal had issued the country guidance set out in Eritrea: MST and Others (National service - risk categories) (CG) [2016] UKUT 443 (IAC). The head note summary in that case states (at paragraph 10):
"10. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm."
5. Both Mr Bates and Ms James confirmed to me that the country guidance summarised above applied in the circumstances of this case. I also heard brief evidence from the appellant who stated that she is fit and well and would be liable to military service if returned to Eritrea.
6. In the circumstances I concluded that the appellant would be at risk of persecution or serious harm if returned to Eritrea because of her acknowledged liability to national service as an illegal departee and that she is, as a result, a refugee. I announced that I would allow the appeal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside. I re-make the decision by allowing the appeal on asylum grounds.

Anonymity

The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

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.

Signed Date

Deputy Upper Tribunal Judge Garratt

TO THE RESPONDENT
FEE AWARD

It appears that no fee was payable in this appeal and therefore there can be no fee award. In the event that a fee was payable then I make no award as the decision of the respondent to refuse the application was properly made at the time in the light of the country guidance then in existence.

Signed Date

Deputy Upper Tribunal Judge Garratt