Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00036/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 19 December 2016

Before

THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

Between

A M
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss J Blair, Counsel, Coventry Law Centre
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is A M who is Rwandan. She was born on 4 May 1981. She appeals against the decision of the Secretary of State dated 16 December 2013 to deport her from the United Kingdom under Section 32(5) of UK Borders Act 2007.

2. The history is set out in the decision of the First-tier Tribunal consisting of Judge Grimmett and Dr Okitikpi promulgated on 22 July 2014. The appellant came here as a visitor in July 2008 and subsequently had her leave extended to allow her to work as a Tier 1 (High Skilled Migrant) until 17 December 2011. She subsequently sought indefinite leave to remain and then in May 2012 claimed asylum.

3. The application for leave to remain was subsequently withdrawn and the application for asylum was refused. An appeal was lodged against that decision and was refused. She became appeal rights exhausted on 4 July 2013.

4. On 17 February 2013 the appellant was arrested at Heathrow attempting to board a flight to Canada using a false passport. On 26 February 2013 she was convicted at Cambridge Crown Court of possession or control of identity documents with intent and sentenced to twelve months' imprisonment.

5. The Secretary of State subsequently made a deportation order consequent on Section 32 of the UK Borders Act 2007. Her resistance to that order is based on the Exceptions in Section 33 and in particular her rights under Exception 1. She contends that it would be contrary to the UK's obligations under the Refugee Convention to deport her. She appealed to the First-tier Tribunal.

6. The appeal was refused. That decision was appealed to the Upper Tribunal and in a decision promulgated on 11 November 2014 Deputy Upper Tribunal Judge Chana refused the appeal.

7. Subsequently by order dated 1 July 2015 Lord Justice Underhill granted leave to appeal to the Court of Appeal. By agreement of the parties the appeal was subsequently allowed without a hearing.

8. In the Statement of Reasons the parties note that the Deputy Upper Tribunal Judge dismissed the appeal on the basis that he was satisfied that there was no material error of law in the determination of the First-tier Tribunal Judge. Adequate reasons were given for finding the appellant's account not to be credible and consistent and her claimed activities in the United Kingdom were not credible. The panel had concluded that she would not be at risk on return to Rwanda.

9. The parties have accepted that there was an error of law in failing to consider the points identified in paragraph 4 of the reasons on which leave to appeal to the Upper Tribunal was given on 6 August 2014 by Upper Tribunal Judge Levin. They are set out as follows:

"It is arguable that the panel's failure to assess the risk that the appellant faces on return irrespective of their adverse credibility findings and with reference to the background information upon Rwanda amounts to an error of law.

It is also arguable that the panel's failure to consider the evidence of the two experts Dr Harry Verhjoven and Profesor Reyntjens when assessing the credibility of the appellant and the risk she claims to face on return also amounts to an error of law.

In such circumstances both the grounds and the determination disclose arguable errors of law."

10. Permission to appeal to the Court of Appeal was given on the basis that the Upper Tribunal had made a material misdirection in law by concluding that the First-tier Tribunal made a material error by not referring to expert report evidence. The Upper Tribunal should have found that the First-tier Tribunal had not given the case the anxious scrutiny required.

11. For the reasons set out in the order of the Right Honourable Lord Justice Underhill and the reasons given when the First-tier Tribunal granted permission on 6 August 2014 the parties were agreed that the appropriate course is that the appeal be allowed and the matter be remitted back to the Upper Tribunal of the Immigration and Asylum Chamber for consideration by a differently constituted Tribunal.

12. I find that there has been an error of law by the First-tier Tribunal. In the first place it appears that there has been a failure to assess the profile of the appellant's risk against the country evidence which shows risk to those who are associated with anti-government persons and policies. That risk is not dependent on the credibility findings in relation to the claimed activity in this county. In other words, it stands independently of any adverse findings of credibility.

13. Secondly, it is clear to me on a reading of the First-tier Tribunal's decision that there has not been a proper consideration of the background expert evidence. In particular there is no assessment of the views of Dr Harold Bond and there has been, in my view, inadequate consideration of the evidence from Dr Verhoven and Profesor Reyntjens. The grounds of appeal make it clear that the failure to consider the evidence of the two experts, Dr Verhoven and Professor Reyntjens, go to the heart of assessing the credibility of the appellant and the risk that she claims to face on return.

14. For these reasons I find there is an error of law and the appeal is allowed. Given that the credibility of the appellant may still be an issue, it seems to me that it would be appropriate for this case to be reconsidered by the First-tier Tribunal. In making that observation I also take into account the fact that some time has passed since this was last in the First-tier Tribunal and I am advised that there is indeed updated country information and that further expert reports may be required.

Notice of Decision

15. For these reasons I shall make directions that this matter be remitted to back to the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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.

LORD BOYD OF DUNCANSBY
Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

Date:

(Immigration and Asylum Chamber)

Date: