Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12821/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons promulgated
on 18 January 2017
on 17 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MUSA NELA
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bedford instructed by Sultan Lloyd Solicitors
For the Respondent: Ms Aboni Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Heatherington ('the Judge') promulgated on 16 June 2016, following a hearing on 1 June 2016 at Birmingham, in which the Judge dismissed the appellant's appeal on asylum, humanitarian protection, and human rights grounds.
2. The Judge noted as a preliminary matter that an application had been made for an adjournment which the Judge deals with in detail from [2-48] of the decision under challenge. The Judge clearly considered the core issue of fairness and no arguable legal error material to the decision to refuse the adjournment request has been made out.
3. Thereafter the Judge records the nature of the evidence given before setting out the findings from [101-127] of the decision. The core findings in relation to the protection claim are set out at [110-118] in the following terms:

110. Having considered the arguments of both parties, I reached the conclusion that the appellant should not be regarded as having given a truthful account. In this appeal, I find that none of the additional facts in the appellant's bundle is beyond dispute.
111. I have substantial doubts about the explanations given by the appellant in his screening interview and statements.
112. I find that the suggestion that in November 2014 only the appellant was arrested in circumstances when there were a large number of protesters (document 57 in the appellant's bundle) as implausible. It is difficult to understand why the authorities might put in so much effort with the appellant, a student, as he claims to fear.
113. I do not accept that the appellant had ever been a supporter of the Democratic Party in the ways he has suggested or at all, or that he has ever been physically mistreated or that the authorities have any continuing interest in him.
114. The appellant is not actively supporting the Democratic Party in absentia. I cannot see why there is a realistic likelihood that he will be detained by the authorities, when he returns to Albania.
115. Apart from police visits looking for the appellant, the appellant's evidence is that none of his family has faced any problems. I find it very difficult to reconcile that the appellant's family are able to carry on their lives in Albania without being detained, and with no apparent concerns. The appellant's father has never spoken against the government and he has never faced any problems with the government.
116. I find that the appellant's claims are not plausible claims. As I cannot rely on the appellant's evidence to be credible or trustworthy considering the evidence as a whole, I am not satisfied, even to the lower standard, that the appellant has made out his claim.
117. I am reinforced in my adverse credibility findings by the provisions of section 8 of the Asylum and immigration (treatment of claimants, et cetera) act 2004. [In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.]
118. The appellant is an economic migrant who entered the United Kingdom illegally.

4. In relation to the human rights claim based upon articles 2 and 3, they fell with the asylum claim. In relation to the article 8 family and private life claim, the Judge sets out relevant findings at [122 to 127] of the decision.
5. Permission to appeal against the judgment was granted on 12 July 2016 in the following terms:

"The grounds argue that the judge erred in refusing an adjournment, and in his consideration of a GP letter produced from the appellant's Albanian GP, in providing no, or no adequate, reasons for certain adverse conclusions, and in concluding that the reasons for refusal were not challenged because the appellant did not tender himself for cross examination.

The Judge was arguably entitled to refuse the requested adjournment. However, the balance of the grounds have arguable merit, for the reasons indicated there in. In particular, and by way of examples, the judge appears to have relied upon an irrelevant factor in [104] of his decision, in arriving at an adverse credibility conclusion, and many of his credibility findings appear to be unreasoned. The decision reveals arguable errors of law.

Discussion

6. The assertion the Judge appears to have taken into account irrelevant matters has arguable merit. The grant of permission refers to [104] which contains a discussion of the entitlement of visitors to the United Kingdom to routine treatment for a pre-existing condition within the NHS which is not an issue in the appeal.
7. The assertion at [108] that the Judge could see no reason why the appellant should not have given evidence and/or been tendered for cross examination, and that the detailed reasons for refusal are unchallenged as the appellant has declined to answer any questions from the Home Office Presenting Officer, does not set out any clear findings.
8. Tribunal guidance in relation to cases where a party fails to give evidence is to be found in Coskuner (16769) approved by the Tribunal in SM(Iraq) 2004 UKIAT 00279, where it was said "We entirely endorse the view that merely not giving evidence cannot of itself be a factor tending to show that a person is not to be believed. It is also, however, and equally clearly, not a factor tending to show that the person is to be believed. If doubts have been raised about the credibility or plausibility of certain evidence, and the facts related by that evidence are not supported by other evidence, the position may be that the fact finder remains in doubt (if an appellant does not attend to give evidence). The consequence of a fact finder's doubt is or may be that the burden of proof is not discharged and so the party who has the burden of proof loses his case." The Tribunal went on to observe that the fact finder did not strictly need to reach any view on credibility at all but added "tactically, the position may be that if the appellant does not answer questions or meet points made against him, the Adjudicator may not be prepared to accept the evidence. Overall, the Adjudicator's task is to decide whether the appellant has made his case."
9. The appellant clearly challenged the reasons for refusal as that was the purpose of the appeal process. If the conclusion of the Judge was that the appellant, on the basis of the material the Judge was asked to consider had not discharged the burden of proof upon him to the required standard, that that may be a more understandable finding. It is not clear what significance the Judge has given to the fact the appellant did not give oral evidence other than to seem to indicate that this entitled him to accept the content of the refusal letter outright. All evidence has, however, to be considered in the round and the weight to be given to that evidence can only be properly assessed when there has been the required degree of anxious scrutiny of such evidence. The Judge in [108] makes comments about the appellant's language abilities and the appellant's presentation, but in relation to the statement "I see no reason why he should not have given evidence and/or been tendered for cross examination" the Judge makes no reference to a point made in the adjournment application relating to the appellant's mental health. There is reference at [33] to two documents being produced from Albania that the appellant claimed to be from a psychiatrist. The appellant also claimed to be receiving assistance in relation to a mental health matter in the United Kingdom. At [35] the Judge refers to the appellant's Counsel not asserting that he suffers from a mental health condition but asserting that if he does have such a condition it may explain why the appellant had not advised to solicitors of the same earlier. There may, therefore, have been a proper explanation for why the appellant chose not to give evidence on the day, which has not been recognised by the Judge in the body of the determination.
10. At [110] the Judge found the appellant could not be regarded as truthful. That account was based upon a claim of a real risk of persecution as a result of an adverse political opinion. The Judge gives no reasoning in the decision to support this finding. Similarly, the Judge seems to close his mind at [112] to the fact it may be plausible that the appellant may have been singled out for adverse attention at the demonstration as a result of either his or his family's profile.
11. It is also stated that the finding at [113], in which the Judge rejects the appellant's claim to be a supporter of the Democratic Party, contains no reasoning why the Judge discounted the documentary evidence produced by the applicant which confirmed his membership of this party and which was produced with the asylum application.
12. At [115] the Judge fails to discuss or incorporate into the finding the fact that the appellant's evidence was that he was at risk as a result of his activities, along with any politically active member of his family, whereas other non-active members of his family do not face persecution. This issue was specifically raised in the asylum interview in reply to questions [38] [50] and [77].
13. The Judge also fails in [117] to give reasons why section 8 of the 2004 Act is engaged in this appeal or at [118] for why the appellant is an economic migrant, save by inference that the core of the protection claim had not been shown to be credible.
14. The First-tier Tribunal plays a very important role in the appeal process as a first instance fact finding tribunal. The duty upon judges of that Tribunal is twofold, namely (i) to make findings of fact based upon the evidence that they have considered with the required degree of anxious scrutiny and (ii) to give adequate reasons for the findings they have made. It is accepted that such findings need not be lengthy but it is important that a reader of a decision is able to understand why the judge has arrived at the findings he or she has made.
15. A reading of the decision clearly shows the Judge did consider the evidence and has made a number of findings, which are referred to above. What is missing, however, is any or any adequate reasoning its support of those findings. It may be that the Judge considered that it was clear why the findings set out had been arrived at, when the decision is read as a whole, but the appellant was entitled to know why he had lost and it is not clear why the Judge found against him in the manner set out in the decision. It may be that the overall conclusion that the appeal should be dismissed is the only one that can be properly made on the evidence, but the parties are still entitled to receive the benefit of adequate reasons in support of such a finding. It is only if the evidence has been considered with the required degree of anxious scrutiny and adequate reasons given that the weight to be given to the evidence can be said to be a matter for the judge. If one or both of these elements are missing it may not be clear that the judge's assessment of the weight given to that evidence is sustainable. SS (Sri Lanka) [2012] EWCA Civ 155 considered.
16. In relation to the question of whether a failure to give adequate reasons can amount to an error of law material to the decision under challenge, in DC (Philippines) 2005 UKIAT 00011 the Tribunal said that a failure to make findings on points raised in the notice of refusal (in an immigration appeal) was an error of law.
17. In the lead case in relation to assessing whether an error of law has been made, R and Others v SSHD (2005) EWCA civ 982, more commonly referred to as R (Iran), Lord Justice Brook said that there was no duty on an Adjudicator in giving his reasons to deal with every argument presented by an advocate in support of his case. It was sufficient if what he said showed the parties and, if needs be, the IAT the basis on which he had acted and if it be that he had not dealt with some particular argument but, it could be seen that there were grounds on which he would have been entitled to reject it, the IAT should assume that he had acted on those grounds unless the appellant could point to convincing reasons leading to a contrary conclusion. The judgment (of the Adjudicator) need not be lengthy. Not every factor that weighed with the Adjudicator in his appraisal of the evidence had to be identified and explained. But the issues the resolution of which was vital to the Adjudicator's conclusion did have to be identified and the manner in which he resolved them explained.
18. In Mohammed Daud v SSHD [2005] EWCA Civ 755 the Court of Appeal said that where an adjudicator had failed to give express reasons for a material finding, it may nevertheless be possible to infer from his overall determination what those reasons would have been and to uphold his determination on that basis. The difficulty with such an approach in this appeal it is that it is not even possible to infer what the Judge's reasoning is in relation to the findings made.
19. I find this decision is infected by arguable material legal error such that it must be set aside. The extent of the failure to provide adequate reasoning and the fact the fact-finding exercise shall have to be undertaken afresh by a different judge, to ensure that judge has sufficient information to give adequate reasons for any findings made, warrants this matter being remitted to the First-tier Tribunal sitting at Sheldon Court in Birmingham to be heard by a judge other than Judge Heatherington.
20. The determination of Judge Heatherington shall be set aside. There shall be no preserved findings. The appeal shall be remitted to the First-tier Tribunal sitting at Sheldon Court Birmingham to be heard by a judge of that Tribunal nominated by the Resident Judge on a date and at a time allocated by the First-tier Tribunal taking into consideration the operational requirements of the Birmingham hearing centre.

Decision

1. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remit the decision to the First-tier Tribunal (IAC) sitting at Birmingham to be heard a fresh by a judge of that Tribunal nominated by the Resident Judge on a date and at a time allocated by the First-tier Tribunal taking into consideration the operational requirements of the Birmingham hearing centre.

Anonymity.

2. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 16 February 2016