Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13107/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 20 January 2017
On 1 February 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

E M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Lane, Counsel instructed by RBM Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The appellant is a national of the Democratic Republic of Congo (DRC). She has permission to challenge a decision of First-tier Tribunal (FtT) Judge Watson who in a decision sent on 4 September 2015 dismissed her appeal against a decision made by the respondent on 16 March 2015 refusing her application for ILR as a victim of domestic violence and stating that she was to be removed by way of directions.
2. It is unnecessary for me to set out the grounds in full because I am satisfied that the judge materially erred in law.
3. The first respect in which the judge erred was not one for which she bears any responsibility since it consists in the fact that there was a document which the appellant's solicitors had sent to the respondent with the application but which the respondent failed to include in the bundle of documents sent by the respondent for appeal purposes. This was a letter from the appellant's GP, Dr Monica Green, dated 19 February 2015. The appellant in her application form made express reference to this letter. The respondent's letter of refusal does not refer to this letter.
4. It is settled law that error of law by way of procedural unfairness can arise even when there is no fault on the part of the judge: see MM (Unfairness; E & R) Sudan [2014] UKUT 00105 (IAC). In my judgment that is precisely what has occurred here. As explained in MM, it is not enough that there has been an error of fact: it must be one that "might" have made a difference: see paragraph 17. In the appellant's case, I am entirely satisfied that this letter might have made a difference because (as will become clear when I address the second reason for setting aside the decision) the judge considered that the appellant's account of being the victim of domestic violence lacked any independent corroboration. The doctor's letter was corroborative: it noted that the appellant reported domestic violence on 2 January 2015 and on 22 January 2015. The note in it as regards the consultation makes reference to the appellant being attacked with a belt and broom. Further, the doctor's letter was one of two documents which the Home Office application form specifies as being required; hence by submitting it the appellant had in fact discharged this requirement of the form; and this may well have influenced the position of the HOPO at the hearing had he or she been apprised of this fact.
5. It is true that the appellant's solicitors should have spotted the lacuna in the respondent's appeal bundle and taken steps to provide it themselves. However, this failure was not the appellant's fault and I am satisfied, having perused the witness statement from Mr Bircumshaw dated 15 July 2016, that the omission was not an act of bad faith.
6. The second reason for finding the judge's decision legally flawed concerns her assessment of the evidence from the Panaghar Safe House dated 27 February 2015. Although the judge did take this letter/report into account, she erroneously understood it to be "entirely reliant upon the appellant's own credibility" (paragraph 14) and later concluded erroneously that "there is no evidence save for her statement" (paragraph 18). It is clear from the letter/report that this refuge completed a CAADA Risk Identification Checklist form and found that "she is subject to domestic abuse with coercion, threats, intimidation and extreme physical mental abuse". Mr Mills makes the valid point that this form seems to set a very low threshold of believability, as almost all of it is simply a recording of what the woman concerned says to the refuge caseworker. But (and this is where the judge went wrong), the form clearly does require the refuge to also give its own assessment of risk and in this case the refuge's assessment was that she was a victim of domestic violence. At the very least that assessment should have been weighed in the balance, especially as the respondent's own application form only specifies that an applicant provides evidence from a refuge, which the appellant had done.
7. For the above reasons I conclude that the judge materially erred in law and the decision must be set aside. Given that the judge's errors turned on the assessment of credibility, I see no alternative to the case being remitted to the First-tier Tribunal not before Judge Watson.
Direction
8. In light of the fact that (i) the respondent in her decision letter does not address the refuge letter/report; but that (ii) the HOPO at the hearing before the FtT maintained that the appellant had not shown she had been the subject of abuse, I direct that the appellant's representative seek and obtain a report from an independent specialist on domestic violence that addresses whether or not the appellant has been the victim of domestic violence. The report is to be provided to the First tier Tribunal with a copy to the respondent by end of March 2017. The First-tier Tribunal is not to list the case for hearing before 7 April 2017.
9. For the above reasons:
The judge materially erred in law;
Her decision is set aside;
The case is remitted to the FtT (not before Judge Watson) with a direction set out in para 8;
The case will not be listed for hearing before 7 April 2017.

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

Dr H H Storey
Judge of the Upper Tribunal