Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00651/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 4th January 2017
On 18 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

SK
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Imamovic instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Introduction
2. The appellant claims to be a citizen of Afghanistan and of the Sikh religion. She was born on 1 January 1983 and she arrived in the UK on 1 September 2015 and claimed asylum shortly thereafter. On 6 January 2016, the Secretary of State refused the appellant's claim for asylum, humanitarian protection and under Article 8 of the ECHR.
3. The appellant appealed to the First-tier Tribunal (Judge Suffield-Thompson). The appellant claims that if she were returned to Kabul in Afghanistan she would be at risk of persecution as a Sikh. She claimed that her family owned a shop and the Taliban constantly demanded money from them. One day, the Taliban killed her brother and attacked her husband who suffered a serious head injury which has left him with a memory deficit. Eventually, they sold the shop and their home and moved to Pakistan where, with the services of an agent, the family came to the UK.
4. Judge Suffield-Thompson, dismissed the appellant's appeal on all grounds. She made an adverse credibility finding and did not accept any of the appellant's account, including that she was from Afghanistan (rather than Pakistan) and that she was a Sikh.
The Appeal to the Upper Tribunal
5. The appellant appealed to the Upper Tribunal on six grounds.
6. First, the judge had been wrong to place no weight upon a letter from the Gurdwara in Afghanistan which confirmed who the appellant was and where she came from. The judge had been wrong to find that the document was "not genuine" simply because it did not mention that her brother had been killed.
7. Secondly, the judge had been wrong to place no weight on the evidence of the expert, Dr Giustozzi who had stated in his report that he had asked an associate to make enquiries of the Sikh community in Kabul and who had confirmed that, having contacted them, that the appellant and her family had been living in the neighbourhood. The judge had been wrong to not give this evidence "any credence" as it was "third-hand knowledge at best" and, again, failed to mention the murder of the appellant's brother.
8. Thirdly, the judge had wrongly reasoned that because the appellant spoke the language of "Hindko", and that that was mostly spoken by Hindus, the appellant was a Hindu rather than a Sikh.
9. Fourthly, and related to last ground, the judge had misunderstood the appellant's evidence when she said that she was a "Hindu/Sikh" and had failed to take into account her evidence that she belonged to a sect of Sikhism called "Mona Sikh" which shared similarities with Hindus as they did not practise the five Ks.
10. Fifthly, the judge had been wrong to take into account that the appellant's husband had not attended the hearing in the light of the medical evidence from his GP as to his mental state and had, therefore, been wrong to find that he had not attended in order to evade cross-examination.
11. Finally, in relation to Article 8, the judge had failed adequately to consider the best interests of the appellant's children.
12. On 16 August 2016, the First-tier Tribunal (DJ Garratt) granted the appellant permission to appeal on all grounds.
13. On 9 September 2016, the Secretary of State filed a rule 24 notice seeking to uphold the judge's decision on the basis that she had not materially erred in law in dismissing the appellant's appeal on all grounds.
Discussion
14. In her oral submissions, Ms Imamovic relied upon her grounds of appeal and, in particular, the judge's failure to give any weight to the letter from the Gurdwara and the expert evidence of Dr Giustozzi. She also submitted that the judge had failed properly to take into account all the appellant's evidence concerning her religion and her explanation that she was a Mona Sikh whom she self-described as "Hindu/Sikh".
15. Mr Richards, on behalf of the Secretary of State indicated that he had misgivings about the determination. He acknowledged that the judge had materially erred in law in rejecting (without giving any weight to) the letter from the Gurdwara (see para 44 of the determination) and the evidence of Dr Giustozzi which, Mr Richards acknowledged, was based upon evidence from an individual with stated credentials whom the expert had asked to make enquires on his behalf (see paras 44-47 of the determination). Mr Richards also acknowledged that the judge's reasoning in relation to the appellant's claimed religion failed to take into account her evidence in her witness statement dated 8 July 2016 (especially at paras 25-29) which explained that she was a "Mona Sikh" and explained how that branch of the Sikh religion differed from others who followed the five Ks.
16. In the light of Mr Richards' acceptance that the judge materially erred in law, it is unnecessary for me to analyse the appellant's submissions and the judge's determination in any detail.
17. I accept the submissions made by Ms Imamovic that the judge did materially err in law in concluding: (1) that the letter from the Gurdwara was not genuine simply because it failed to mention that the appellant's brother had been murdered; and (2) that the evidence of Dr Giustozzi should not be given "any credence" on the basis that it was "third-hand knowledge at best" and, again, failed to mention that the appellant's brother had been murdered. As Mr Richards acknowledged, Dr Giustozzi is a recognised expert and the credentials of the person he entrusted to make the enquiries on his behalf were provided. Further, the judge's reasoning in paras 51-55 is, with respect, both confusing and fails to take into account the appellant's evidence about her religion given in her witness statement. The judge's consistent reliance on the appellant being a "Hindu/Sikh" fails to take the evidence seeking to explain that there were elements of her religion, as part of the Mona sect, that differentiated her from other Sikhs.
18. I am satisfied that cumulatively these errors were material to the judge's adverse credibility finding and her decision to dismiss the appellant's appeal. Consequently, it is unnecessary to address the remaining grounds.
Decision and Disposal
19. For these reasons, therefore, the decision of the First-tier Tribunal to dismiss the appellant's appeal involved the making of an error of law and its decision cannot stand. The decision is set aside.
20. Given the nature and extent of fact-finding required, and applying para 7.2 of the Senior President's Practice Statement, the proper disposal of this appeal is to remit it to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Suffield-Thompson.

Signed

A Grubb
Judge of the Upper Tribunal