Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01165/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 23 February 2017
On 03 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

B M S
(anonymity directioN MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Ali, Solicitor from Morden Solicitors
For the Respondent: Ms T Alboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Lagunju (the judge), promulgated on 4 July 2016, in which he dismissed the Appellant’s appeal. That appeal was against the Respondent’s decision of 4 September 2015, refusing the Appellant’s protection and human rights claims.
2. The Appellant is an Ethiopian national. His protection claim was based upon claimed involvement with the Ethiopian People Patriotic Front (EPPF), an opposition party in that country. In essence, it was said that his father had been active for the organisation, and he himself had been detained and falsely accused of murder in order to punish him for political engagement. After release from prison, he started up his activities once again. When informed that the Ethiopian authorities were after him, he fled the country in 2006.

The judge’s decision
3. The judge did not accept that the Appellant had been politically active in any way when living in Ethiopia. There is a finding that the claim to have been arrested for allegedly delivering a political document to someone was implausible (paragraphs 14-16). The judge did not accept that the Appellant would have been falsely accused of murder instead of simply being detained on political grounds (paragraphs 21-23). The judge did accept that the Appellant had been accused of murder and then imprisoned, albeit that this was not because of claimed political activities (paragraph 24). A claim of material political activity for the EPPF in the United Kingdom was rejected on the basis that the evidence adduced for this carried little weight and was unclear (paragraphs 29-31). Even if there had been a degree of activity, this was insufficient to show a risk on return (paragraph 32).

The grounds of appeal and grant of permission
4. The grounds assert that the judge has erred in respect of his credibility assessment. The main thrust of the grounds is that the judge failed to have regard to evidence contained in the Appellant’s witness statement. In addition, it is said that there are insufficient reasons provided for rejecting the evidence of United Kingdom-based activities.
5. Permission to appeal was granted by First-tier Tribunal Judge Simpson on 8 August 2016.

The hearing before me
6. Ms Ali’s central point was that in paragraph 14 the judge had misconstrued the evidence in a material way. The gap between the father’s disappearance and the mother delivering EPPF documents was not “so any years” as the judge stated, but in fact only a matter of months. This affected the judge’s view of the Appellant’s credibility overall.
7. Ms Alboni accepted that the judge had erred in this respect. However, she submitted that it was not material to the outcome of the appeal.
8. I indicated to the representatives that I was concerned by what the judge said in paragraph 29 relating to the reasons why the EPPF letter was rejected. I could not find any evidential source for the assertion that the Appellant has stated that the EPPF were not functional in the United Kingdom.
9. Both representatives took time to search through their respective papers. Neither could locate an appropriate evidential source. Ms Alboni accepted that there appeared to be a further error here. She acknowledged that it was impossible to ascertain if the Appellant had ever in fact provided this evidence. On a cumulative basis, Ms Alboni accepted that the errors were material.

Decision on error of law
10. The judge’s decision contains material errors of law and I set it aside.
11. There is an error in paragraph 14. The Appellant’s evidence was that his father disappeared in October 1998, and that the incident with the EPPF documents occurred in September 1999. This was clearly not a period of “so many years”, as stated by the judge. He was obviously relying on what he took to be a very significant period of time when rejecting a core element of the Appellant’s claim.
12. In and of itself, this error might not have been enough to justify setting aside the decision. However, the second error relating to paragraph 29 and accepted by Ms Alboni is more than sufficient to tip the balance. No one could find any evidential source for the judge’s finding that the Appellant had said that the EPPF did not function in the United Kingdom. The only reference I could find was a note of the Presenting Officer’s submissions in the Record of Proceedings. A submission is clearly not the Appellant’s evidence.
13. Two important aspects of the Appellant’s case have been dealt with erroneously by the judge. The decision cannot stand.

Disposal
14. With the agreement of the representatives, I conclude that the appeal must be remitted to the First-tier Tribunal to be reheard afresh.
15. There will be no preserved findings of fact.

Anonymity
16. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. This direction has been made in order to protect the Appellant from serious harm, having regard to the interests of justice and the principle of proportionality.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision of the First-tier Tribunal.

I remit the case to the First-tier Tribunal.

Directions to the First-tier Tribunal

1. The appeal shall be reheard afresh, with no preserved findings of fact;
2. There are no material concessions from the Respondent in respect of the Appellant’s claim.

Directions to the parties

1. Both parties shall comply with any further directions issued by the Sheldon Court hearing centre;
2. The Appellant shall provide to the Tribunal and Respondent a skeleton argument at least 14 days prior to the remitted hearing.

Signed Date: 2 March 2017

H B Norton-Taylor
Deputy Judge of the Upper Tribunal