PA/00544/2016

• Status of case: Unreported
• Hearing date: 21 Sep 2016
• Promulgation date: 4 Nov 2016
• Publication date: 17 Jul 2020
• Last updated on: 17 Jul 2020

The decision

IAC-FH-AR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00544/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 4 November 2016


Before

UPPER TRIBUNAL JUDGE ALLEN


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G N
(anonymity direction MADE)
Respondent


Representation:
For the Appellant: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer
For the Respondent: Ms B Poynor, instructed by Elder Rahimi Solicitors (London)


DECISION AND REASONS

1. The Secretary of State appeals with permission to the Upper Tribunal against the decision of the First-tier Judge allowing the appeal of the respondent against the Secretary of State's decision of 7 January 2016 refusing to grant asylum. I shall refer hereafter to the Secretary of State as the respondent, as she was before the judge, and to N as the appellant, as he was before the judge.

2. It is agreed between the representatives that this appeal is materially flawed by errors of law such that it will have to be reheard in the First-tier Tribunal. The Secretary of State's grounds allege among other things that the First-tier Judge failed to make findings on material facts in dispute, including the nationality of the appellant and also the asylum claim and risk on return. It is also contended that the judge failed to consider all the country guidance cases on minors from Afghanistan.

3. In her Rule 24 response Ms Poynor did not accept that the judge had failed to make findings on risk or return or that the failure to make a finding on the appellant's nationality was a material error of law, but agreed that the judge had misdirected himself in failing to decide risk on return at the date of hearing and that that was a material error of law.

4. I am grateful to both representatives for the points that have been made in this case and in particular for the realistic Rule 24 response of Ms Poynor. It was clearly a material error of law in failing to decide risk on return at the date of the hearing. I do not think it was sufficient for the judge to make a finding on risk on return on the alternative if the appellant were not an Afghan national but returned to Afghanistan. It was important in a case where nationality was in dispute for a clear finding to be made. The nature of the judge's errors is such as to make this a proper case for a full rehearing in the First-tier Tribunal, with no preserved findings of fact. The matter will therefore be relisted at Hatton Cross with a time estimate of three hours and a Pushtu interpreter will be booked. It was not possible to provide a hearing date, but I express the hope that bearing in mind the appellant's age in particular that an early date can be found for the rehearing of this appeal. The outcome of today's hearing is that the appeal of the Secretary of State against the judge's decision is allowed and the matter is to be reheard in full in the First tier.

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 him or any member of their 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

Upper Tribunal Judge Allen