Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25056/2015

THE IMMIGRATION ACTS

Heard at Stoke, Bennett House
Decision & Reasons Promulgated
On 2nd November 2016
On 1st December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

SAK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Cronin, Counsel, instructed by Legal Rights Partnership
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of South Africa born on 7th July 1983. The Appellant has an extensive immigration history having first entered the United Kingdom as a visitor on 10th January 2002. She last entered the UK on 27th November 2013 on a visit visa valid until 12th May 2014. The Appellant applied for leave to remain under family and private life and this was refused on 1st July 2014 with a right of appeal. An appeal was lodged and the appeal was allowed to be reconsidered on 17th March 2015. This appeal was refused by detailed notice of refusal with reasons on 24th June 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Parker sitting at Bennett House, Stoke-on-Trent on 23rd October 2015. In a Decision and Reasons promulgated on 10th November 2015 the Appellant's appeal was dismissed.
3. The Appellant lodged Grounds of Appeal to the Upper Tribunal on 23rd November 2015. On 5th July 2015 Upper Tribunal Judge Pitt sitting as a Judge of the First-tier Tribunal granted permission to appeal. Judge Pitt noted that the grounds maintained that the Appellant's account of abuse in South Africa (and that of her mother and siblings), the core of her case, was not challenged by the Respondent in the refusal letter or in cross-examination, nor questioned by the First-tier Tribunal Judge at the hearing or otherwise challenged. Judge Pitt considered that it was arguable that it was not open to the First-tier Tribunal Judge to find the account of abuse not credible without affording the witnesses and Counsel for the Appellant at the hearing an opportunity to address any concerns. Further she considered that it was arguable that the decision did not take into account material evidence of the abuse that was before the First-tier Tribunal Judge and that the account of abuse underpins the Article 8 claim and that if those grounds are made out the assessment is arguably unsustainable.
4. On 9th August 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel, Ms Cronin. Ms Cronin is familiar with this matter, having attended before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer, Mr McVeety.
Preliminary Issue
5. As a preliminary issue Ms Cronin asked if I would anonymise the proceedings due to the sensitive nature of the allegations and abuse raised by the Appellant. Mr McVeety does not raise any objection. I consequently anonymise this matter.
Submissions/Discussion
6. I am considerably assisted in this matter by the approach adopted by Mr McVeety on behalf of the Secretary of State. He acknowledges that the accounts of severe domestic violence, sexual abuse, incest experienced by the Appellant and mother were not disputed by the Secretary of State and were not challenged in the hearing in cross-examination nor were the subject of questioning by the First-tier Tribunal Judge. Mr McVeety acknowledges that what the First-tier Tribunal Judge has done is made a freestanding assessment and that the judge has erred in omitting to provide the Appellant and her family witnesses with an opportunity to respond to this conclusions that the account was not credible. He acknowledges that such failure is material and that the Appellant has not consequently had a fair hearing.
7. Ms Cronin appreciates the stance taken by Mr McVeety and submits that the evidence is compelling.
The Law
8. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
9. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
10. The allegations made in this case by the Appellant are extremely serious and I am gratefully assisted by the approach adopted by the legal representatives. I am satisfied that in omitting to provide the Appellant and her family witnesses with an opportunity to respond to his conclusions that the account was not credible the First-tier Tribunal Judge's approach was unfair and unreasonable and that his findings should not stand and that he has committed a material error of law. In addition I note that the judge also only partially considered the South African social work papers and that his conclusion that there was no credible evidence of abuse by the father/husband was unreasonable and contrary to the evidence that was at least to be considered and therefore unsustainable.
11. In all the circumstances the correct approach, which is accepted by Mr McVeety, is to conclude that there is a material error of law in the decision of the First-tier Tribunal Judge and to set aside the decision and to remit the matter for rehearing to the First-tier Tribunal.
Decision and Reasons
12. The decision of the First-tier Tribunal Judge contains material errors of law and is set aside. The following directions are given:-
(i) That the Appellant's appeal be remitted to the First-tier Tribunal sitting at Stoke-on-Trent (Bennett House) on the first available date 28 days hence with an ELH of two and a half hours.
(ii) None of the findings of fact are to stand.
(iii) That the appeal be heard before any Immigration Judge other than Judge of the First-tier Tribunal A J Parker.
(iv) That there be leave to either party to adduce such further subjective/objective evidence upon which they seek to rely at least fourteen days prior to the rehearing of this matter. Such evidence to be lodged at the Tribunal and copies of the evidence to be served upon the other party.

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 her or any member of her 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 1st December 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date 1st December 2016

Deputy Upper Tribunal Judge D N Harris