Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001459
IA/07281/2021; PA/52771/2021 (P)

THE IMMIGRATION ACTS

Decision under rule 34
Decision & Reasons Promulgated
On 22 April 2022
On 4 May 2022

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

HAK (IRAQ)
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Unless the Upper Tribunal or a court directs otherwise no report of these proceedings, or any form of publication thereof, shall directly or indirectly identify the appellant. This order applies to, amongst others, the appellant and the respondent. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

Introduction
1. This is an appeal by the appellant against the decision of Judge of the First-tier Tribunal Hatton (‘the Judge’), sent to the parties on 10 December 2021, by which the appellant’s appeal against a decision of the respondent to refuse his protection claim was refused.
Rule 34 Decision
2. By means of a ‘rule 24’ response dated 23 February 2022, Mr. Avery, Senior Presenting Officer, confirmed on behalf of the respondent that there was no objection to the decision of the First-tier Tribunal being set aside and the resumed hearing being remitted back to the First-tier Tribunal.
3. Mr. Avery observed, inter alia:
‘2. The respondent does not oppose the appellant’s application for permission to appeal. While the judge made detailed and comprehensive adverse credibility findings the respondent accepts that the judge failed to address what was and was not accepted in the refusal [letter]. On that basis the credibility findings are unsound.’
4. In considering whether to proceed under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) I am mindful as to the circumstances when an oral hearing is to be held in order to comply with the common law duty of fairness and as to when a decision may appropriately be made consequent to a paper consideration: Osborn v. The Parole Board [2013] UKSC 61; [2014] AC 1115 and JCWI v. President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), at [6.1 - 6.14].
5. In the circumstances and being mindful of the importance of these proceedings to the appellant, the identified position of the respondent, the expense to the parties of attending an oral hearing and the overriding objective that the Tribunal deal with cases fairly and justly, I am satisfied that it is just and appropriate to proceed under rule 34 of the 2008 Rules.
Anonymity
6. The Judge made an anonymity order and no party before me requested that it be set aside. I confirm the order above.
Background
7. The appellant is a national of Iraq and an ethnic Kurd. He hails from the Kurdistan Region of Iraq. He asserts that he fled Iraq with his wife consequent to threats received from his wife’s family. International protection was sought in this country in September 2019 and the respondent refused the application by a decision issued in May 2021. The respondent accepted that the couple were in a relationship, but it was not accepted that her family had made threats to the appellant.
Grounds of Appeal
8. The appellant relies upon detailed grounds of appeal drafted by Ms. K Smith, Counsel, who represented him before the Judge. Four grounds of challenge are particularised:
i. In conducting the credibility assessment, the Judge failed to take into account relevant considerations, namely that the respondent had accepted the appellant to have given a credible account in respect of:
a) How he met his wife: para. 46 of the respondent’s decision
b) Why he kept the relationship secret: para, 47
c) The pursuit of the relationship: paras. 48 and 49
d) His discussion of the relationship with his mother: para 50
e) The continuation of the relationship after the rejection of the first proposal: paras. 51 and 52
f) His feeling after the rejection of the first proposal: para 54.
g) The relationship was accepted: para. 55.
ii. Procedural unfairness as to the assessment of credibility with the Judge making adverse findings on matters not raised with the appellant.
iii. A failure to take into account relevant evidence provided by the appellant’s witness statement.
iv. A failure to give adequate reasons in respect of the securing of return documentation.
9. In granting permission to appeal by a decision dated 25 January 2022, Judge of the First-tier Tribunal Hughes gave detailed reasons for considering the appeal to be arguable, particularly in respect of ground 1:
‘4. This ground is arguable. Significant concessions were made by the respondent as to the appellant’s account which were relevant to his credibility; but the Judge appeared to have no regard to these in his assessment of credibility.’
Decision on Error of Law
10. Having read the Judge’s decision with care, I am satisfied that the respondent has adopted an entirely appropriate approach to the error of law consideration.
11. The Judge noted at para. 20 of his decision that the respondent accepted that the appellant was in a relationship with his wife. He then proceeded to make detailed findings as to why the appellant was unreliable and concluded that the incidents he claimed took place had not happened as described: para. 96. I observe that the assessment of credibility is a cumulative one: Karanakaran v. Secretary of State for the Home Department [2000] EWCA Civ 11; [2003] 3 All ER 449. Unfortunately, the Judge failed to expressly incorporate the respondent’s positive acceptance of relevant facts when assessing credibility in the round. Whilst it may ultimately have been open for the Judge to have reached his conclusion, he was required to place into his assessment the respondent’s acceptance that the appellant was a credible witness as to elements of his history. Such failure is, as accepted by the respondent, a material error of law.
12. The decision of the Judge contains a material error of law and is therefore set aside. No findings of fact are to stand.
Resumed Hearing
13. The nature or extent of any judicial fact finding which is necessary in order for the decision in this appeal to be re-made is such that, having regard to the overriding objective in rule 2 of the 2008 Rules, it is appropriate to remit the case to the First-tier Tribunal: paragraph 7.2(b) of the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal.
Notice of decision
14. The decision of the First-tier Tribunal, dated 10 December 2021, involved the making of a material error on a point of law. I set aside the Judge’s decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. No findings of fact are preserved.
15. The decision is to be remade by the First-tier Tribunal sitting in Bradford.

Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan
Dated: 22 April 2022