Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02542/2013

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 28th July 2016
On 28th September 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

af
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Naik, Counsel
For the Respondent: Mr C Bates, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a citizen of Jamaica, appeals with permission against the decision of the First-tier Tribunal panel, who, in a determination promulgated on 2nd October 2014 dismissed his appeal. On 4th December 2013 the Respondent had made a decision to deport the Appellant. Permission was granted by Upper Tribunal Goldstein on 10th February 2015.
2. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal Rules 2008 (SI 2008/269 as amended)) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. For the avoidance of doubt, this order applies to the Appellant and to the Respondent. A failure to comply with the order may lead to contempt of court proceedings.
3. Following permission being granted by the Upper Tribunal, the appeal came before the Upper Tribunal to decide whether the First-tier Tribunal's decision involved the making of an error on a point of law. I had the opportunity of hearing submissions from the parties at the hearing and after discussion, it was conceded by Mr Bates on behalf of the Respondent that the decision did indeed involve the making of an error of law and therefore I gave short reasons as to why I agreed that was the case and had why the decision should be set aside.
4. I therefore now set out my reasons for reaching that decision which are summarised below.
5. The background to the proceedings are set out in the decision letter of 4th December 2013 and summarised by the First-tier Tribunal at paragraphs [12] to [21]. The Appellant entered the UK on 9th December 1998 with leave to enter for six months as a visitor and applied in 1999 for leave to remain as a student. This was later followed by an application made on the basis of his marriage to a British citizen. It is plain from reading the First-tier Tribunal's determination that it was accepted at that hearing by the Respondent that whilst a decision had been made in 2005, it was not disposed of until 2010 and that the Appellant was not granted leave as the Respondent was considering deportation action against him as a result of his criminal offending.
6. As the First-tier Tribunal panel observed at [13] the appeal that was before them was the third occasion that the Appellant had appealed against deportation proceedings. The first decision to deport the Appellant was taken in 2005 but was not resolved until 2010 after a decision of the Court of Appeal remitted the appeal to the Upper Tribunal for a rehearing. The second decision was taken in 2011 and the appeal was allowed on Article 8 grounds. The present proceedings were as a result of a further conviction which led to the Appellant receiving a sentence of 43 months' imprisonment on 12th March 2012. The Appellant had acquired convictions for seventeen offences going back to June 2000 and they were summarised by the First-tier Tribunal panel at paragraphs [16]-[19].
7. The basis of the appeal before the First-tier Tribunal was on two distinct grounds, namely Article 3 and Article 8. In respect of the application on Article 3 grounds, it was common ground between the parties that the panel's starting point of their assessment was the previous determination from 2011 whereby the Appellant's Article 3 claim was dismissed but his Article 8 claim was allowed. The panel summarised the evidence of the earlier Tribunal at paragraphs [23]-[31] of the determination and for the purposes of this decision it is not necessary to set out or refer to those findings in detail.
8. In summary, the Tribunal in 2011 had accepted the Appellant's evidence as credible concerning his account of having given evidence against another individual which had led to him being the subject of serious attacks and the subject of threats to himself and members of his family.
9. The risks from the individual concerned, were set out by the First-tier Tribunal at [25] and the panel referred to the oral evidence in support at paragraphs [26] to [35] of the determination and also the documentary evidence including evidence emanating from the police at [31].
10. Thus the panel had before them evidence of past serious harm and threats made to the Appellant in the UK and also in light of events relating to the return of the Appellant to Jamaica.
11. The panel also had further evidence relating to the risk of harm in Jamaica from this individual including a letter from the Jamaican Police Force and also expert evidence from a country expert. Notwithstanding that, the panel considered that the Appellant would not be at risk on return from this named individual or any of his associates.
12. It was common ground that at the time of the hearing before the panel that the individual concerned had been deported to Jamaica and this was an important change when considering the issue of risk on return. According to the grounds settled by Counsel, the information as to this man's deportation had not been notified to the Appellant until the morning of the hearing. At the time of the hearing in 2011 this individual was in custody and the Appellant was not at risk of removal due to the success of his Article 8 claim. Thus the panel were required to consider the past evidence of accepted serious harm in the light of the new evidence and importantly that the individual who was the focus of concern was now in Jamaica and the risk of harm arising from that.
13. In my judgment, the panel's findings on this issue which are set out at paragraphs [33]-[46] failed to assess the risk on return in accordance with the evidence. It was incumbent on the panel to consider the individual concerned and his propensity to inflict future harm when set against the accepted factual background. There was substantial evidence before the panel as to the past harm and this individual's propensity. Whilst the panel did consider the evidence concerning the lack of threats made by this individual, in my judgment that was in a different context to the one that would face the Appellant on return to Jamaica where the individual concerned would be present. The findings also failed to take into account that he had been in prison for four of the five years which undermine that part of their findings.
14. Furthermore, as Mr Bates accepts, there was no assessment made as to risk to the Appellant in Jamaica itself by reference to the past events nor was there any consideration of the issue of sufficiency of protection or whether the Appellant could internally relocate to another area in Jamaica. There was also no reference made to the country guidance case of AB (Protection - criminal gangs - internal relocation) Jamaica CG [2007] UKAIT 00018.
15. When considering the issue of risk on return in the particular context relating to this Appellant, it was necessary to consider the objective evidence relating to whether the authorities were able to provide a level of protection to those who fear retribution or whether he would be admitted to a witness protection programme. Those issues arise from the country guidance case but there was no assessment made of those issues.
16. The panel also had evidence from the police in Jamaica. However, for the reasons set out at paragraphs [44] and [46], the panel did not place any weight on that evidence. In my judgment the panel did not assess the evidence in the light of the earlier findings of the First-tier Tribunal whereby R had been a credible witness. Nor had they considered the police evidence in the context of the chronology. The written evidence confirmed that the individual concerned had returned to Jamaica and that this was well before his return had been accepted by the Respondent. Furthermore, the panel failed to assess the evidence in the light of the country guidance case and the later evidence of the expert. As Mr Bates conceded there was no consideration of the issue of sufficiency of protection or whether the Appellant could relocate (if he was at risk in his own area from the individual concerned).
17. I have therefore reached the conclusion that the decision does involve the making of an error on a point of law for those reasons and therefore the decision should be set aside.
18. As to the re-making of the decision, both advocates before me have submitted that in view of the error of law identified, it would be necessary for further evidence to be provided by the parties which would also include updating oral evidence. It was therefore submitted by both advocates that in those circumstances that a remittal to the First-tier Tribunal was the correct course to adopt. As to the Article 8 claim, both advocates were of the view that due to the passage of time since the hearing in 2014, that new evidence concerning Article 8 would also be necessary.
19. Ms Naik also made reference to two particular issues which would need to be resolved. Firstly, in relation to his criminal conviction and the plea tendered which she submitted had not been recorded correctly by the First-tier Tribunal. Secondly, she submitted that there would be further matters relating to the disclosure of information from the Respondent which would require consideration. In view of the latter, it would be necessary for a case management hearing to be undertaken before the hearing of the appeal before the First-tier Tribunal.
20. Consequently, I therefore agree with the advocates as to the correct course to adopt in relation to this appeal namely that having found an error of law and having set aside the decision, that it is one that should properly be re-made by way of a remittal to the First-tier Tribunal for a fresh hearing.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law and is therefore set aside. It is remitted to the First-tier Tribunal for a fresh hearing.

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.

Signed
Date: 27/9/2016
Upper Tribunal Judge Reeds