Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00138/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 28th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Noel [B]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Patel of Counsel, instructed by Broudie Jackson & Canter
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Heynes made following a hearing at Manchester on 26th May 2016.
2. The appellant is a citizen of Burundi who claimed asylum in the UK on 30th April 2015, shortly after his arrival here. He claims to be at risk on return because he is the co-founding member of a music band, called the Lion Story. He composed songs criticising the government. As a consequence he was targeted and assaulted, his house burnt down and, in August 2014 arrested and detained. He fled to Rwanda and his wife now has refugee status in Uganda.
3. Initially the claim was dealt with under the detained fast track procedure. Judge Robinson, on 29th May 2015 accepted that the appellant was involved with the Lion Story but not that he had been persecuted as claimed.
4. When the fast track procedure was found to be unlawful, the appellant served further documents on the respondent and asked that the claim be reconsidered. The respondent did not do so and the appeal then came before Judge Heynes.
5. This was clearly a very difficult hearing. The representative submitted that, since the respondent had not complied with directions, and she had not given any response to the documents, they should stand as unchallenged. The judge, unsurprisingly, rejected that submission but it seems that the representative continued to pursue the argument in a manner which the judge said "was disruptive and unhelpful".
6. Judge Heynes disbelieved the appellant's account in its entirety.
7. The appellant's representative filed lengthy grounds, challenging the judge's treatment of the evidence, arguing that he had dealt with the matter unfairly.
8. Permission to appeal was initially refused by Judge Pedro, but subsequently granted by Upper Tribunal Judge Kamara on 29th July 2016.
9. On 6th September 2016 the respondent served a reply defending the determination. However, at the hearing, Mr Harrison told me that he would not oppose a remittal of this matter to the First-tier.
10. As outlined in the grounds, and in the submissions by Ms Patel, there are a number of errors of law in this determination.
11. First, the judge has relied on a number of matters, when reaching his credibility findings, without putting them to the appellant. Some, such as signatures on a witness statement, criticisms of the arrest warrant and the translation of contract documents, were not matters raised by the respondent either in the refusal letter or by the Presenting Officer at the hearing. Furthermore, the appellant's basic claim, that he was involved with the music group, had been accepted by a previous Immigration Judge. The appellant was therefore not on notice that these were matters which would concern the judge, and he was deprived of an opportunity to address his concerns.
12. Second, when considering whether the appellant was involved as he claimed with Lion Story the judge wrote:
"In the background information relating to the group, there is barely a mention of him."
As Ms Patel pointed out, in at least one of the articles produced by the appellant he is mentioned four times by name and his photograph is reproduced. To state that there is "barely a mention of him" is not a proper reflection of that evidence.
Notice of Decision

The decision is set aside. It will be reheard in the First-tier Tribunal by a judge other than Judge Heynes.
No anonymity direction is made.

Signed Date 19 December 2016

Deputy Upper Tribunal Judge Taylor