Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00607/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 14 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

[a k]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Nicholson, instructed by Times PBS Limited
For the Respondent: Miss S Vijiharan, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Lucas promulgated on 20 July 2016 in which he dismissed the appellant's appeal against the decision by the Secretary of State made on 8 January 2016 to refuse him asylum and to remove him from the United Kingdom.
2. The appellant's history and the nature of his claim is set out in detail in the refusal letter and in the decision of the judge as are the Secretary of State's reasons for disbelieving the appellant's account and concluding that he even what he said was true and then he would not be at risk on return to Afghanistan.
3. The judge heard evidence from the appellant and submissions from the respondent's Presenting Officer and also from Mr Nicholson who also appears for the appellant here today. The judge in his findings found that the appellant was not credible at was at considerable pains to point out why that was so.
4. The judge did not find that the appellant's claim was credible and found that he had fabricated the evidence. He also considered that there was no basis on which, even were the case taken at its highest, that the appellant had a plausible claim to be entitled to asylum and/or humanitarian protection.
5. The challenges to the judge's findings of fact are fourfold.
6. First, that although the judge had directed himself at paragraph 28 properly as to the burden and standard of proof he had on three separate occasions set out that he needed to be convinced that those appeared in paragraphs 30, 31 and 41. It is said that this is an indication that although having directed himself properly at the beginning the judge had not applied the correct standard of proof in reaching his conclusions.
7. The second ground is that the judge failed properly to apply the decision in Tanveer Ahmed in that he concluded that the documents the appellant had sought to rely upon had been manufactured, not merely that they were not reliable.
8. The third ground is that the judge failed properly to give weight to the evidence of Dr Giustozzi who had produced an expert report for use in the appeal.
9. The fourth grounds is that the judge had failed properly to take into account all the evidence in that he had said at paragraph 33 that there was no evidence provided that the appellant had returned to Afghanistan in 2005 whereas it is said that there appears in the bundle produced by the appellant at pages 61 - 65 medical prescriptions indicating that the appellant had been present in Afghanistan in 2005 and subsequently. It is also averred that in any event the judge did not in fact take case at its highest.
10. There is a response to that by way of a Rule 24 letter submitted by the respondent on 7 September 2016.
11. I consider the grounds in turn.
12. The first ground is, I consider, made out. Whilst it is clear that the judge did properly direct himself at paragraph 28 as to the correct burden and standard of proof he nonetheless on three separate occasions sets out that there was no convincing or credible evidence. I consider that the use of the word "convincing" is indicative that the judge was required a considerably higher standard of proof than that applicable in asylum appeals and that this contradicts the self-direction at paragraph 28. Accordingly I find that this was an error of law.
13. Further, I consider that whilst the judge purported at paragraph 46 of his decision to take the case at its highest, he did not in fact do so. It is self-evident from what the judge says at paragraph 46 that he made credibility findings and did not take into account the appellant's case at its highest which involved the submission that he would not in fact be safe in Kabul and would in fact be at risk there either from the police or from his adversary.
14. On that basis the error is material.
15. Given the nature of this it goes to the core of the findings on credibility it is unnecessary for me to consider the other grounds. However, I do consider that ground 4 is made out in that the judge did clearly fail to take into account relevant evidence. While it would have been open to him to say that it was not credible, that is not what he said. He simply said that there was no evidence and that I consider does feed into the findings I have made with respect to ground 1.
16. Whilst there is less merit in grounds 2 and 3 given the findings I have reached there is no need for me to reach any conclusions on those.
17. For these reasons I am satisfied that the decision of the First-tier Tribunal Judge did involve the making of an error of law and I set it aside.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did involve the making of an error of law and I set it aside
2. I remit the decision to the First-tier tribunal for a fresh decision on all material issues.

Signed Date: 13 October 2016

Upper Tribunal Judge Rintoul