Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001521
IA/01240/2021 (PA/52127/2020)

THE IMMIGRATION ACTS

Determined under rule 34
Decision & Reasons Promulgated
On the 25th April 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

FS (ALBANIA)
(ANONYMITY ORDER IN FORCE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS

1. On 11 March 2022, I issued the following directions to the parties:

1. The purpose of these directions is to seek the parties’ views as to whether this appeal should be allowed on the papers, and remitted without a hearing to the First-tier Tribunal to be heard by a different judge.

Background

2. By a decision dated 30 November 2021 (“the decision of the First-tier Tribunal”), First-tier Tribunal Judge Herlihy dismissed an appeal brought by the appellant, a citizen of Albania, against a decision of the Secretary of State dated 16 October 2020 to refuse her claim for asylum and humanitarian protection, and her human rights claim.

3. In a decision dated 9 February 2022, First-tier Tribunal Judge Elliott granted the appellant permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal, observing:

“The Judge’s determination suggests that she considered the expert evidence through the lens of the adverse credibility findings made in the previous Tribunal hearing, and through the lens of her own credibility assessment, rather than a consideration of the evidence in the round before making her credibility findings. In doing so it is arguable that the Judge fell into error as identified in Mibanga v Secretary of State for the Home Department (2005) EWCA Civ 367.”

4. In a rule 24 response dated 1 March 2022, Mr T. Lindsay, a Senior Home Office Presenting Officer, wrote:

“2. The respondent accepts that First-tier Tribunal Judge Herlihy has materially erred in her determination dated 30th November 2021.

3. In particular, it is conceded that the Judge’s assessment of the appellant’s credibility has not been conducted in the round. This is demonstrated by the findings at [40] of the determination, which indicate that the impact of the appellant’s alleged mental health conditions has been discounted due to a prior conclusion having been reached that the underlying account is not credible.”

5. By an email dated 4 March 2022, those representing the appellant invited the Upper Tribunal to allow the appeal on the papers, and remit the matter to the First-tier Tribunal in the manner described above.

6. Accordingly, I direct that if either party objects to this matter being determined on the papers in the manner proposed by the appellant (that is, allowing the appeal on the papers, without a hearing), it must provide reasoned objections to the tribunal within 14 days of being sent these directions.

7. Following the expiration of the 14 day period, the appeal will be referred to a judge to consider whether the appeal may be determined without a hearing under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
8. By 25 April 2022, neither party had objected to the appeal being allowed on the papers.
Consideration under rule 34
9. Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides, where relevant:
“(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.
(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.”
10. The starting point for my consideration as to whether it would be appropriate to determine the appeal without a hearing is the overriding objective. Rule 2(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that the overriding objective of the Upper Tribunal is to “deal with cases fairly and justly”. That includes, at (2)(c), “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”, and, at (d), “using any special expertise of the Upper Tribunal effectively”. Also relevant is the need to avoid delay, so far as compatible with proper consideration of the issues: see paragraph (2)(e).
11. It is plain from the positions of the parties, as manifested in the appellant’s grounds of appeal, the respondent’s rule 24 response, and the fact that neither party has objected to the appeal being allowed in the manner proposed in my directions dated 11 March 2022, that the overriding objective is for this appeal to be allowed on the papers, without a hearing. In light of the common ground that already exists, a hearing would serve no further purpose, and would simply unnecessarily elongate the proceedings.
Discussion
12. I find that the decision of the First-tier Tribunal involved the making of an error of law for the reasons identified by Judge Elliott in the grant of permission to appeal, and conceded by the Secretary of State in the rule 24 response dated 1 March 2022.
13. I set aside the decision of the decision of Judge Herlihy with no findings of fact preserved. In light of the extensive findings of fact that will be required, it is appropriate to remit this matter to the First-tier Tribunal to be heard afresh by a different judge.
14. I maintain the anonymity order already in force.

Notice of Decision

The decision of Judge Herlihy involved the making of an error of law and is set aside with no findings of fact preserved.

The appeal is remitted to the First-tier Tribunal to be heard by a judge other than Judge Herlihy.

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 Stephen H Smith Date 25 April 2022

Upper Tribunal Judge Stephen Smith