Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01706/2014

THE IMMIGRATION ACTS

Heard at Field House
On 23 January 2017
Decision sent to parties on
On 15 February 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

D L
[ANONYMITY ORDER MADE]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr B Mackenzie, Counsel instructed by Kesar & Co, solicitors
For the respondent: Ms A Fijiwala, a Senior Home Office Presenting Officer
DECISION AND REASONS
Anonymity order
The Upper Tribunal has made an anonymity order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.

Decision and reasons
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to refuse him international protection under the Refugee Convention or humanitarian protection grounds, or leave to remain on human rights grounds, and to refuse to revoke a deportation order. The appellant is a citizen of the Democratic Republic of the Congo.
2. The appellant left his country of origin age 10 and lived in South Africa for about 7 years before coming to the United Kingdom. The appellant is a vulnerable person, a paranoid schizophrenic with suicidal ideation and strong links with the United Kingdom, where he has lived since 2002, and has thus spent almost half his life here, and more than half his life outside his country of origin.
3. The vulnerable witness guidance has not been applied in dealing with him and in assessing his evidence, although he appeared before the First-tier Tribunal without representation. It is not disputed that he has committed many serious offences, for which deportation must be considered.
4. The First-tier Tribunal applied the wrong standard of proof for the protection elements of the appeal and an incorrect test to the assessment of suicide risk. The First-tier Tribunal Judge did not have the advantage of the recent decision in Paposhvili v. Belgium - 41738/10 (Judgment (Merits and Just Satisfaction): Court (Grand Chamber)) [2016] ECHR 1113, in particular at [181]-[191] thereof, which recalibrated the test for Article 3 ECHR assessment of the situation of seriously ill individuals subject to deportation.
5. At the hearing, Ms Fijiwala for the respondent conceded that the decision could not stand. In the light of the Paposhvili guidance, it was agreed between the Tribunal and the parties that the proper course is for this appeal to be remitted to the First-tier Tribunal for hearing afresh, with no findings of fact or credibility preserved. The appellant is strongly advised to seek professional representation for the next hearing in the First-tier Tribunal.
6. No anonymity order was made in the First-tier Tribunal. In the circumstances of this appeal, which is an asylum appeal with a seriously ill appellant, such an order is plainly appropriate and I make an anonymity order.
7. That is the basis on which this appeal came before the Upper Tribunal.

DECISION

8. For the foregoing reasons, my decision is as follows:

The making of the previous decision involved the making of an error on a point of law.

I set aside the previous decision.

The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed, with no findings of fact or credibility preserved.

Date: 10 February 2017 Signed Judith AJC Gleeson Upper Tribunal Judge Gleeson