Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: PA/00520/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On January 25, 2017
On January 26, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MRS JUSTINE BIANZA MUTOMBO
(NO ANONYMITY DIRECTION)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Nicholson, Counsel, instructed by GMIAU
For the Respondent: Mr Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant is a citizen of the Democratic Republic of Congo. On August 18, 2015 he claimed asylum. The respondent refused his asylum claim on January 5, 2016 under paragraphs 336 and 339F HC 395.

2. The appellant appealed the removal decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on January 20, 2016.

3. Her appeal came before Judge of the First-tier Tribunal Wedderspoon (hereinafter referred to as the Judge) on September 27, 2016 and in a decision promulgated on October 27, 2016 he dismissed her appeal on all grounds.

4. The appellant lodged grounds of appeal on October 31, 2016 submitting the Judge had erred by not granting the appellant an adjournment in circumstances where she was unrepresented and by failing to give adequate reasons for rejecting her account.

5. Permission to appeal was granted by Judge of the First-tier Tribunal Grant on November 9, 2016 on the ground it was arguable the Judge had erred in his approach to an adjournment. The respondent filed a Rule 24 response dated November 29, 2016 opposing the permission.

6. The matter came before me on the above date and the parties were represented as set out above.

7. The notes of the original hearing were examined by the representatives and it was noted that the hearing lasted over two hours during which there was lengthy cross-examination by the respondent's representative, Miss Shaw. There had been positive findings in her favour in which the Judge accepted that she was married to a person who had been killed trying to kill the President and whose husband was a leading UDPS member.

SUBMISSIONS

8. Mr Nicholson submitted that when the appellant turned up at the hearing with a letter from the UDPS, London, the Judge should have firstly offered the respondent an opportunity to check the veracity of the document and secondly, enquired why the signatory or some other representative had not attended the hearing. None of this had been done and the Judge appeared to have dealt with the document on the basis that as no one attended little weight should be attached to it. Additionally, the respondent's representative questioned the appellant at length about her claim and failed to record much of this in his decision. The Judge appeared to have accepted that her husband was who he claimed to be but had failed to make adequate findings on whether the appellant was politically active or not.

9. Mr Harrison relied on the refusal letter but acknowledged the appellant suffered from mental health issues and was unrepresented at the original hearing. He conceded she had possibly done her best and may not have been aware of the importance of witnesses attending in circumstances where a letter had been produced. The Judge appeared to accept positive aspects of her case but may not have considered all of the evidence when assessing the political issues facing her.

DISCUSSION AND FINDINGS

10. Two issues have been raised in an appeal before me and at the hearing I agreed there was an error in law.

11. The record of proceedings was very detailed and I found no evidence that anyone sought an adjournment in the case. In fact, the main reference to the newly admitted document was recorded in the final submissions although clearly new documents were submitted at the hearing. It may well be that it was only at that point the respondent's position on the new document was known. There is no evidence that the appellant actually enquired about calling a witness and the fact she is a litigant in person does not automatically mean a different set of Rules would apply. On its own this issue would not be sufficient to amount to an error in law as it is clear from the record of proceedings that a considerable amount of time was spent by the Judge on this hearing.

12. The second issue that has been argued is that the Judge appeared to accept her husband was politically active and that he had been killed trying to assassinate the President. It therefore follows that the Judge's finding that the appellant was not politically well-known was hard to balance with that finding and of course there was evidence before the Judge she too was a UDPS activist and she had been arrested. To suggest that she had no profile against this background seems unsustainable. The Judge was entitled to reject the evidence but merely saying based on her assertion he rejected the claim overlooked the fact he had already accepted her evidence about her husband's own activities.

13. I was satisfied there was an error in law.

14. I raised with both representatives where this appeal should be heard in the event there was an error in law. Both agreed that in light of Part 3, Section 7.1 to 7.3 of the Practice Statement the matter should be remitted to the First-tier Tribunal.

15. I direct that any additional evidence should be served on both the Tribunal and other party in accordance with the directions I issued in court.

DECISION

16. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.

17. The appeal is remitted back to the First-tier Tribunal for these issues to be addressed hearing under Section 12 of the Tribunals, Courts and Enforcement Act 2007.

18. The matter should not be listed before Judge of the First-tier Tribunal Wedderspoon. Ideally, this matter should be listed before myself in the First-tier but I leave that to the listing department to decide if that is necessary.

Signed: Dated:

Deputy Upper Tribunal Judge Alis