Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44313/2014

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 7th February 2017 On the 20th February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR MUHAMMAD JALIL KHAN
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Dhanji (Counsel)
For the Respondent: Mr P Nath (Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Callow promulgated on the 11th August 2016, against the original decision of the Respondent dated the 23rd October 2014 to refuse his Human Rights claim, on the basis of Article 3 and Article 8 of the ECHR.
2. The case originally came before First-tier Tribunal Judge Monaghan on the 8th May 2015, in respect of the appeal against the decision taken by the Respondent dated the 23rd October 2014. Judge Monaghan dismissed the appeal under the Immigration Rules and under Articles 3 and 8, but the Appellant successfully appealed that decision to the Upper Tribunal, and the decision of First-tier Tribunal Judge Monaghan was found to contain material errors of law by Deputy Upper Tribunal Judge Zucker promulgated on the 5th January 2016. It was stated by Judge Zucker that "The findings of the First-tier Tribunal shall be preserved with respect to those issues already determined, but for the avoidance of doubt that the Appellant was found credible does not mean that the First-tier Judge hearing the remitted appeal will necessarily be required to accept whatever the Appellant has to say about his objective fears, if any" and that "11. The issue will be confined to the extent to which if at all the Appellant's Articles 3 and 8 rights will be violated by any return after consideration of his evidence if any, relating to those fears".
3. When the appeal came back before First-tier Tribunal Judge Callow who heard the appeal at Hendon Magistrates' Court on the 12th July 2016, Judge Callow took account of the history, the previous decision and the fact the case had previously been heard by First-tier Tribunal Judge Monaghan, and the directions given by Deputy Upper Tribunal Judge Zucker, but went on at [10] when considering the Article 3 claim made by the Appellant to find that "In giving his very brief evidence about the circumstances of his 2001 kidnapping, the Appellant was very vague. He did not know the people who had kidnapped him. He had lost contact with his parents and sought to exaggerate his claim by saying for the first time that he had also been sexually assaulted. His claim is without substance and merit. It is simply after all these years unbelievable and was belatedly raised in February 2014 sometime after earlier applications had been unsuccessfully made in July and November 2013.".
4. First-tier Tribunal Judge Callow went on to find that there had been no evidence produced also addressing the level of protection available in the Appellant's home country and that the Appellant had failed to produce any evidence to show that he faced a real risk of being subjected to torture or inhuman or degrading treatment or punishment or that his home country could not provide reasonable protection against any threat and degrading punishment and that in any event the Appellant could safely internally relocate. First-tier Tribunal Judge Callow went on to consider that it was not open to the Appellant to reopen the issue of "insurmountable obstacles" which had already been addressed by First-tier Tribunal Judge Monaghan.
5. At the start of the appeal hearing, I provided both legal representatives with a copy of Deputy Upper Tribunal Judge Zucker's decision, as neither legal representative had a copy of that decision. I further stood the appeal down and gave both legal representatives time to fully consider the determination from duty Zucker, and thereafter Mr Nath, on behalf of the Respondent submitted that Deputy Upper Tribunal Judge Zucker found that:
"5. It is important to note that although Fozia Khan was not accepted as a credible witness, the Appellant was. Absent from the decision was any consideration of whether or not the Appellant remained at any risk consequent upon what had occurred all those years ago when he was kidnapped. In other words, although the Judge accepted that there was a subjective fear of return to Pakistan, the Judge having found the Appellant credible there is no sufficient examination by the Judge of whether such fear was objectively well founded. If it were, then having regard to the appropriate standard it is possible that the Appellant was entitled to succeed not only under Article 3 but also arguably under Article 8 because of the third test in Razgar [2004] UKHL 27, which requires an assessment of whether the decision is in accordance with the law"
and that at [10] Deputy Upper Tribunal Judge Zucker in giving directions had stated that:
"10. The findings of the First-tier Tribunal shall be preserved with respect to those issues already determined, but for the avoidance of doubt that the Appellant was found credible does not mean that the First-tier Judge hearing the remitted appeal will necessarily be required to accept whatever the Appellant has to say about his objective fears, if any".
6. Mr Nath conceded after considering those paragraphs and the decision of Deputy Upper Tribunal Judge Zucker as a whole, that First-tier Tribunal Judge Callow had materially erred in reopening at [10], the question as to whether or not the Appellant had in fact been kidnapped back in 2001, and erred in failing to limit his consideration as to whether or not as a result of having been kidnapped the Appellant had an objective risk upon return, as at the date of the hearing before him. Mr Nath accepted and conceded on behalf of the Respondent that Judge Monaghan found the Appellant credible in that regard, and that Judge Zucker had noted that the Appellant had been found credible, but what was absent from the consideration of Judge Monaghan was whether or not the Appellant remained at risk because of what had happened all those years ago when he was kidnapped. Mr Nath conceded that by reopening the issue as to whether or not the kidnapping had happened at all, First-tier Tribunal Judge Callow had strayed beyond his remit in the remitted appeal, and that this did amount to a material error of law, such that the decision of First-tier Tribunal Judge Callow should be set aside in its entirety and the case remitted back to the First-tier Tribunal Judge for rehearing.
7. In light of that concession, which was quite properly made, I do find that the decision of First-tier Tribunal Judge Callow does contain a material error of law in that regard. I agree entirely with the concession made that when considering the entirety of Deputy Upper Tribunal Judge Zucker's decision, that he was not intending that the issue as to whether or not the Appellant was in fact kidnapped should be reopened, and that that was a matter which he found had already been determined, and that although it was said that for the avoidance of doubt the Appellant was found credible did not mean the First-tier Tribunal Judge hearing the remitted appeal would necessarily be required to accept what the Appellant had to say about his objective fears, if any, what was meant thereby was that the Judge was not necessarily bound to accept that the Appellant would thereby still be at risk upon return now, having previously been kidnapped in 2001. That was not an invitation to reopen the issue of the kidnapping itself, as Deputy Upper Tribunal Judge Zucker at [5] made it clear that Judge Monaghan had found the Appellant credible in that regard and what was simply lacking was consideration and analysis of the objective risk faced as a result now, upon return.
8. I bear in mind when remitting the case back to the First-tier Tribunal, that I am not sitting in appeal from the decision of Deputy Upper Tribunal Judge Zucker, and that therefore, although I have set aside the decision of First-tier Tribunal Judge Callow in its entirety, the decision of Deputy Upper Tribunal Judge Zucker in respect of the original decision of First-tier Tribunal Judge Monaghan still applies, as do the directions given by Deputy Upper Tribunal Judge Zucker such that the findings of First-tier Tribunal Judge Monaghan remain preserved in respect of those issues already determined by First-tier Tribunal Judge Monaghan, and that the issue for the remitted appeal will be confined to the extent to which if at all the Appellant's Article 3 and Article 8 rights would be violated by his return after consideration of his evidence, if any, relating to those fears, and assessing the objective nature of those fears, in light of the preserved findings regarding the kidnapping and the lack of credibility of the Appellant's partner Fozia Khan. Clearly, to the extent that on the remitted appeal the First-tier Tribunal Judge does make findings in respect of the objective risk upon return, and therefore the extent to which the Appellant's Article 3 and Article 8 rights may be infringed were he to be returned, as stated by Deputy Upper Tribunal Judge Zucker still have to be considered.

Notice of Decision
The decision of First-tier Tribunal Judge Callow does contain material errors of law and is set aside in its entirety.
The appeal is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge, except from either First-tier Tribunal Judge Monaghan or First-tier Tribunal Judge Callow.
The remitted appeal remains subject to the directions given by Deputy Upper Tribunal Judge Zucker in his decision dated the 5th January 2016.
I make no order for anonymity, no such order having been sought before me.
Signed
R.F.McGinty
Deputy Upper Tribunal Judge McGinty Dated 7th February 2017