Tribunal decisions

The decision

Upper Tribunal
Appeal Number: UI-2021-001524
(Immigration and Asylum Chamber)
On Appeal from PA/51547/2020
IA/00828/2021

THE IMMIGRATION ACTS

Heard at Field House
On the 21 April 2022
Decision & Reasons Promulgated
On the 03 May 2022

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

nazrul islam
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr Raza Halim of Counsel, instructed by Lawmatic Solicitors
For the respondent: Mr Stephen Walker, a Senior Home Office Presenting Officer
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 on 14 September 2021 to refuse him refugee status under the 1951 Convention, humanitarian protection, or leave to remain in the United Kingdom on human rights grounds. The appellant is a citizen of Bangladesh.
2. Mode of hearing. The hearing today took place face to face.
3. The basis of the appellant’s claim is that he is at risk as a long-term supporter of Jamaat-e-Islami (JL), since 1991, based on past problems with the Awami League and continuing interest by them. On his account, he has been tortured in the past.
First-tier Tribunal decision
4. First-tier Judge Paul in a section headed Conclusions and Reasons acknowledged that the appeal turned on the appellant’s credibility. The judge’s began at [28] by relying on the reasoning in the respondent’s refusal letter:
“28. The starting point has to be a consideration of the analysis provided by the SSHD in her refusal letter. This starts at paragraph 25. In my view, this decision letter is an excellent example of a very specific analysis of the quality of the answers given by the appellant during his interview. Whilst it is accepted that he is from Bangladesh, and has some knowledge of the JL’s activity, the respondent does not consider that he is able to corroborate that in any material way, and the inconsistencies in his asylum interview record are carefully examined.
29. In particular, the circumstances in which he said that he went into hiding but nevertheless continued his political activities, and also that he was able to travel freely from Bangladesh, are considered to be inconsistent with somebody who was genuinely and at real risk and of being detained and tortured. In my view, on a close reading of paragraphs 25 through to 50, they provide a convincing analysis of the defects of the appellant’s case, and I formally adopt those paragraphs as reasons that I rely on in concluding that the appellant’s credibility is unreliable.”
5. Judge Paul found the appellant’s account of events in 2014 to be ‘wholly unreliable’ and that the evidence supporting sur place activities was very thin. There was ‘no evidence of any highlighted participation’ in JL activities: Judge Paul considered the appellant’s claim to be self-serving and without substance, although he did accept that the appellant had in the past some involvement with JL.
6. Judge Paul also relied on section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and considered that the appellant’s failure to claim on arrival further damaged his credibility.
Permission to appeal
7. First-tier Judge Lester granted permission to appeal on the basis that the judge had arguably erred in giving inadequate reasons for his decision and in failing to engage with the evidence.
8. In particular, she considered it arguable that in adopting paragraphs 25-50 of the refusal letter without setting out his own findings of fact and credibility, the judge had erred in law.
Rule 24 Reply
9. There was no Rule 24 Reply on behalf of the respondent.
10. That is the basis on which this appeal came before the Upper Tribunal.
Upper Tribunal hearing
11. At the beginning of the hearing, Mr Walker for the appellant informed me that he was in some difficulty. The respondent’s records indicated that Counsel who appeared in the First-tier Tribunal had withdrawn the underlying decision letter, although the Judge Paul’s decision did not mention or deal with that withdrawal.
12. During the short adjournment, Mr Walker was able to provide me with the respondent’s electronic record of Counsel’s note:
“1. BGD political claim. Several inconsistencies in AIR. Alleged FIR from 2013 but asylum claim only made in 2019.
2. RFRL withdrawn due to being defective, NOT with a view to grant. Maintain refusal.
Signed, George Mavrantonis, Counsel Barrister [sic]”
13. Mr Walker confirmed that it was the respondent’s understanding that the refusal letter had been withdrawn at the First-tier Tribunal hearing.
Analysis
14. Where it is the respondent who withdraws her decision, Rule 17(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 states what must happen:
“17(2) The Tribunal must (save for good reason) treat an appeal as withdrawn if the respondent notifies the Tribunal and each other party that the decision…to which the appeal relates has been withdrawn and specifies the reasons for the withdrawal of the decision.
(3) The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule and that the proceedings are no longer regarded by the Tribunal as pending.”
That was not done. Indeed, on the contrary, the judge adopted the reasoning in the refusal letter and relied upon it. He did not engage at all with rule 17(2) or 17(3). I find that he erred in law in ignoring the withdrawal and in relying as he did on the contents of that letter, which Mr Mavrantonis had expressly characterised as defective.
15. The appeal not having been treated as withdrawn by the First-tier Tribunal, the provisions of rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended) now apply. Rule 17(2) operates such that a notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal, except in relation to permission to appeal.
16. I therefore considered whether I should consent. I bear in mind that even if the Upper Tribunal does so consent, Rule 17(3) of the Upper Tribunal Procedure Rules permits a party which has withdrawn its case to apply to the Upper Tribunal for the case to be reinstated. Mr Walker indicated that he wished to withdraw the withdrawal of the refusal letter in the First-tier Tribunal and defend the refusal letter.
17. I do not consider, given the paucity of reasoning in the First-tier Tribunal’s decision, that it is appropriate to consent to withdrawal of the appellant’s case in the Upper Tribunal. The decision in the First-tier Tribunal has been set aside and the First-tier Tribunal withdrawal of that refusal letter arguably also falls with that decision.
18. Accordingly, I refuse consent and the respondent’s refusal letter and her objection to the appeal stand. The appeal will be reheard in the First-tier Tribunal with no findings of fact or credibility preserved.
19. Even if this complication had not emerged, I would have set aside the decision of the First-tier Tribunal. The challenges at [3] of the grounds of appeal were twofold:
(1) that the First-tier Judge failed to give reasons for adopting the respondent’s position, failed to have proper regard to the oral evidence at the hearing, the appellant’s witness statement, the country evidence produced and his Counsel’s submissions; and
(2) that the refusal letter as reasoned could not have been the complete answer to the appellant’s appeal at the date of hearing because there was post-decision material before the First-tier Tribunal, which was set out in the skeleton argument.
20. There is merit in both grounds. The purpose of a First-tier Tribunal hearing is to rehear and make findings of fact on the basis of the evidence before that Tribunal, and as at the date of hearing: it is an ex nunc assessment. The First-tier Judge erred in treating the reasons given in the refusal letter as determinative of credibility and of the appeal. Mr Halim’s grounds of appeal set out in full what that was, and why it was relevant.

DECISION

21. 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.

Signed Judith AJC Gleeson Date: 21 April 2022
Upper Tribunal Judge Gleeson