Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00552/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 30 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MFU
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Saleem of Counsel instructed by M & K Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION ON ERROR OF LAW
Background
1. The appellant is a national of Sri Lanka, born on 14 April 1992. The appellant first entered the United Kingdom on a Tier 4 (Student) visa on 12 January 2013 having been granted a visa on 12 December 2012. Leave was granted until February 2016 although his leave was curtailed on 22 February 2015 as his sponsor licence was provoked. The appellant applied for asylum on 1 September 2015. The respondent refused the appellant's claim for reasons set out in a Reasons for Refusal Letter dated 5 January 2016. The appellant's appeal against that refusal was dismissed by Judge of the First-tier Tribunal Lal in a decision promulgated on 12 July 2016. The appellant appeals with permission.
Error of Law Hearing
2. Mr Saleem submitted that the judge's findings were inadequate. Although he conceded that it is not an error of law in itself to consider, as the judge did, Section 8 (of The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) matters at the beginning of his reasons, what he contended was the manner in which the delay had been considered and the mindset of the judge.
3. Paragraph [19] demonstrates that because there has been a substantial delay in this case in the appellant claiming asylum this has caused the Immigration Judge not to believe the appellant. Mr Salem went on to submit that at [21] the judge considered in the alternative if the appellant's account were accepted. However it was noted that the judge did not set out in any detail what he does and does not accept. He simply states that he does not believe the appellant's account due to the delay. Mr Saleem pointed to the very detailed witness statement setting out the appellant's account at pages 10 to 19 of the appellant's bundle which includes an explanation as to why he did not claim asylum on arrival.
4. Whilst it was open to the judge not to believe the appellant's explanation he failed to give any reasons why this was the case. It was also the appellant's case that he had been unable to leave his country without paying a bribe. However the judge simply made a finding that the appellant had been able to leave the country lawfully on a student visa with his own national passport and does not consider or give any reasons as to why he has rejected the appellant's reasons.
5. At [22] of the judge's decision, where he considered the country guidance, the judge finds that the appellant has no family association of Tamil separatism and there is no record of any subsequent visits to his home. It was submitted that this was simply an error and a material one as at paragraph 18 of the appellant's witness statement, the appellant had said:
"The authorities are looking for me and I know this as they have made enquiries and they have been going to my house."
6. Again, it was open to the judge not to believe the appellant's account but he needed to give reasons for not doing so and he failed to do so. Although the judge had at paragraphs [10] to [15] set out the evidence, it was submitted that the judge had failed to factor this evidence into his decision and had failed to give reasons as to why he had rejected what the appellant had said in oral evidence and in his witness statement. It was insufficient to make a sweeping statement that he did not believe the appellant because of the delay and there had been no anxious scrutiny of the appellant's case.
7. Ms Fijiwala quite properly conceded, particularly in light of the witness statement and the mistakes of fact made by Judge Lal, that the appeal before the Upper Tribunal must succeed.
8. I am satisfied that for all the reasons highlighted, Judge Lal's approach disclosed material errors of law as he failed to provide adequate reasons for rejecting the appellant's account. I am further satisfied that his findings have been infected by his consideration of the issue of delay (rather than his consideration of Section 8 per se). The fact that there has been a substantial delay in this case and that the judge was entitled to take this into consideration does not obviate the need for adequate findings of fact on the appellant's claim.
Decision
9. The decision of the First-tier Tribunal contains an error of law such that the decision cannot stand and set the decision aside. Under Section 12(2)(b)(i) of the Tribunals, courts and enforcement Act 2007 and Practice Statement 7.2, the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal to be heard, de novo, by any judge other than Judge Lal. No findings are preserved.

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

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson