Tribunal decisions

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: PA/00843/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 28 March 2017
On 30 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

H. Z.
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Boyle, Solicitor, Halliday Reeves Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant says that he is a citizen of Iraq, from Mosul, who left that country on 1 August 2015, and who then entered the UK illegally on 24 September 2015. He made an application for protection the same day.
2. The Respondent refused that application on 12 January 2016, and the Appellant’s appeal to the First tier Tribunal [“FtT”] against that decision was heard on 10 October 2016. It was dismissed on all grounds, in a decision promulgated on 21 November 2016 by First Tier Tribunal Judge Head-Rapson.
3. The Appellant was granted permission to appeal that decision on 7 December 2016 by First tier Tribunal Judge Adio on two grounds. First it was arguable the Judge had failed to give adequate reasons for her rejection of the Appellant’s account of his reasons for leaving Iraq. Second it was arguable the Judge had failed to deal at all with the humanitarian protection claim.
4. The Respondent filed a Rule 24 Notice dated 30 December 2016 in relation to the grant of permission to the Appellant, in which she stated that she opposed the grant of permission, and invited the Upper Tribunal to conclude that it was open to the Judge to conclude that the Appellant had not told the truth.
5. Thus the matter comes before me.

Error of Law?
6. As to the first limb of the appeal the Appellant’s case is that the decision contains a bald rejection of the Appellant’s evidence without reasons [54]. The Judge stated therein “taken in the round I find that the Appellant’s account lacks credibility. I find that the many discrepancies in the Appellant’s account have destroyed the core elements of his asylum claim”. The difficulty with this is that neither the reasons given by the Respondent for the refusal, nor the decision itself, identify any discrepancies in his account. Mr Diwnycz confirmed that the Respondent’s case as set out in the reasons given for the refusal was no higher than that the Appellant’s account was implausible. He was unable to identify any discrepancy that cross-examination of the Appellant had revealed and accepted that the appeal had been argued simply on the basis that the Appellant’s account was implausible.
7. As to the second limb of the appeal it is common ground that the Appellant’s humanitarian protection appeal was based upon his undisputed claim to originate from Mosul (his “home area”), which was then, and remains, an area beset by a state of internal armed conflict. The decision does not address whether his return to Iraq was feasible, and if it were, does not consider the point of return, the reasonableness of the expectation that he relocate to Baghdad or the KRG, or any argument based upon destitution and the ability to acquire a CSID. The bald statement [63] that the Appellant can internally relocate within Iraq does not engage with any of the relevant current country guidance.
8. In the circumstances the Respondent did not seek to defend the decision. Both parties were agreed before me that the decision discloses a material error of law that renders the dismissal of the appeal unsafe, and that the decision must in the circumstances be set aside and remade.
9. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, or whether to proceed to remake it in the Upper Tribunal. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision is set aside, and the appeal is remitted to the First Tier Tribunal for rehearing. The appeal is not to be listed before Judge Head-Rapson.
ii) A Kurdish Sorani interpreter is required for the hearing of the appeal.
iii) There is anticipated to be only one witness, and the time estimate is as a result, 3 hours.
iv) It is not anticipated by either representative that there is any further evidence to be filed, and thus the appeal may be listed at short notice as a filler on the first available date at the North Shields hearing centre after 17 April 2017 for final hearing. No further Directions hearing is presently anticipated to be necessary. Should either party anticipate this position will change, they must inform the Tribunal immediately, providing full details of what (if any) further evidence they seek to rely upon.
v) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Decision
10. The decision promulgated on 21 November 2016 did involve the making of an error of law sufficient to require the decision to be set aside and reheard. Accordingly the appeal is remitted to the First Tier Tribunal with the directions set out above.

Deputy Judge of the Upper Tribunal JM Holmes
Dated 28 March 2017