Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00085/2016

THE IMMIGRATION ACTS

Heard at Vernon Street, Liverpool
On 05 January 2017
Decision & Reasons Promulgated
On 10 January 2017

Before

The Hon. Mr Justice McCloskey, President

Between

HAMZEH [K]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
Appellant: Mr G Brown, of Counsel, instructed by Broudie Jackson Canter Solicitors
Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION
1. Having regard to the standard of proof applicable to all asylum claims and the omnipresent requirement of anxious scrutiny, I have concluded that the decision of the First-tier Tribunal (the "FtT") cannot be sustained, on two grounds.
2. The first concerns the treatment by the FtT of the evidence of the Reverend McIntyre. On this issue, the gist of the grant of permission to appeal was that the FtT mischaracterised and understated the thrust and scope of this evidence. I concur with this criticism. The reach of this witness's evidence, which is recorded in writing, was considerably greater than the FtT acknowledged. The duty in play was to engage fully with this evidence and to make appropriate consequential findings. There was a failure to do so.
3. Secondly, the FtT failed to balance the undisputed fact of the Appellant's previous arrest, documented in questions/answers numbers 12 - 14 of his Asylum interview. This was a significant issue, having regard to [11] of SSH and HR Iran CG [2016] UKUT 00308. The Tribunal should have juxtaposed this fact with the fact of the Appellant's illegal departure from Iran and made appropriate findings. There was a failure to do so.
4. The materiality of these failures cannot, in my judgement, be plausibly disputed.
5. Permission to appeal was also granted on the issue of whether the FtT had made a concrete finding issue of the Appellant's asserted baptism. I find no merit in this ground, having regard to [34] - [35] and, in particular, [42] of the Tribunal's decision. The Judge did indeed highlight certain conflicting evidence relating to the date of this undeniably important event. However, a clear finding that the Appellant was baptised was duly made.

Decision
6. Giving effect to the above:
(i) The decision of the FtT is hereby set aside.
(ii) I remit the appeal to a differently constituted FtT for fresh decision.
(iii) I preserve no findings of fact.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 05 January 2017