Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ui-2021-001380
IA/02390/2020 (pa/52586/2020)

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On the 12 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

ewk
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms H Lynes instructed by Migrant Legal Project
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) 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. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Background
2. The appellant is a citizen of Kenya who was born on 11 February 1998. She arrived in the United Kingdom on 1 January 2017. She claimed asylum on 6 June 2018. It is common ground that the appellant is a victim of trafficking which was recognised in a positive ‘Conclusive Grounds’ Decision of the Competent Authority on 18 October 2019.
3. On 17 November 2020, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR. Although it was accepted that the appellant was a victim of trafficking, the respondent did not accept that the appellant was at risk of being re-trafficked or at risk, as she claimed, of Female Genital Mutilation. Further, although the appellant had given birth to a son in the UK on 30 November 2018, the respondent did not accept that her return to Kenya would breach Art 8 of the ECHR or Art 3 of the ECHR.
4. The appellant appealed to the First-tier Tribunal. In a decision dated 15 November 2021, Judge Lloyd-Lawrie dismissed the appellant’s appeal on all grounds. She accepted that the appellant was a victim of trafficking. Judge Lloyd-Lawrie did not accept, however, that the appellant was at risk of being re-trafficked or at risk of FGM from her family on return to Kenya. The judge accepted that the appellant would have support from her family and a sufficiency of protection from the Kenyan authorities.
The Appeal
5. The appellant sought permission to appeal to the Upper Tribunal on five grounds.
6. First, the judge failed to take into account the evidence of a country expert that addressed the issues of risk of re-trafficking, sufficiency of protection and internal relocation in reaching her findings.
7. Secondly, the judge failed properly to consider the evidence, and give adequate reasons, in finding that the appellant would have family support on return to Kenya notwithstanding that that was an aspect of the narrative of her trafficking claim which had been accepted by the respondent and the judge.
8. Thirdly, the judge failed to take into account the background evidence, in particular a US State Department Trafficking and Persons Report for 2021 concerning the protection, if any, the appellant would obtain from the police in Kenya.
9. Fourthly, the judge erred in law in assessing the appellant’s credibility, in particular in relation to her evidence concerning any continued support she might receive from her family on return. The judge failed properly to take into account the expert’s psychiatric report concerning the appellant’s vulnerability in assessing whether any inconsistencies in her evidence were significant when assessing the truthfulness of her account.
10. Fifthly, the judge failed properly to take into account all the evidence, including the expert evidence, when finding that the appellant was not at risk of destitution amounting to a breach of Art 3 of the ECHR on return.
11. On 23 December 2021, the First-tier Tribunal (Judge Cox) granted the appellant permission to appeal.
12. On 18 January 2022, the respondent filed a rule 24 notice seeking to uphold the judge’s decision.
13. The appeal was listed at the Cardiff Civil Justice Centre on 12 May 2022. The appellant was represented by Ms Lynes and the respondent by Mr Diwnycz.
Discussion
14. On behalf of the appellant, Ms Lynes made oral submissions based upon the five grounds of appeal and invited me to conclude that the judge had erred in law and that her decision should be set aside and remade.
15. Having heard Ms Lynes’ submissions, Mr Diwnycz conceded that all five grounds were established and the judge had erred in law in dismissing the appellant’s appeal and that her decision could not stand and should be set aside and the appeal remitted to the First-tier Tribunal for a de novo rehearing.
16. Having considered the grounds and Ms Lynes’ submissions, I agree with Mr Diwnycz’s concession that the appellant has established that the judge erred in law in dismissing the appellant’s appeal. I accept that all five grounds are well-founded and that the judge’s decision should be set aside and a de novo rehearing take place before the First-tier Tribunal.
Decision
17. The decision of the First-tier Tribunal involved the making of an error of law. That decision cannot stand and is set aside. None of the judge’s findings can be preserved.
18. Given the nature and extent of fact-finding required, and having regard to para 7.2 of the Senior President’s Practice Statement, the proper disposal of this appeal is to remit it to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Lloyd-Lawrie.

Signed

Andrew Grubb

Judge of the Upper Tribunal
16 May 2022