Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01272/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 24 January 2017
On 27 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

ZS
ANONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Nicholson (Counsel)
For the Respondent: Mr Diwnycz (Senior Home Office Presenting Officer)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) 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 first Appellant in this determination identified as DM.

Introduction

1. I have anonymised the appellant's name because this decision refers to his international protection claim.

2. This is an appeal by the appellant, a citizen of Libya, against a decision of the First-tier Tribunal dated 18 October 2016, in which it dismissed his appeal against the respondent's decision dated 26 January 2016 to refuse asylum and humanitarian protection.

Asylum and humanitarian protection claim

3. The appellant's claim before the First-tier Tribunal was a straightforward one and comprised two parts: (i) he is an atheist and this would place him at enhanced risk in Libya; (ii) the country situation in Libya had deteriorated to such an extent that he is entitled to Article 15c protection.

First-tier Tribunal decision

4. The First-tier Tribunal did not accept the credibility of the appellant's claim to be an atheist. In so doing the First-tier Tribunal noted that the appellant's previous asylum claim had been dismissed by a previous Tribunal following a hearing on 16 October 2012. That Tribunal roundly rejected the appellant's credibility and did not accept that he had been targeted in Libya because of a claim to be atheist.

5. The First-tier Tribunal also found that there would be no breach of Article 15c if the appellant returned to Tripoli, and therefore dismissed the appeal.

6. In grounds of appeal, both findings (credibility and Art 15c) were challenged on behalf of the appellant. In granting permission to appeal First-tier Tribunal Judge Page observed that the assessment of risk under Article 15c is brief and arguably unlawful.

7. In a rule 24 the respondent submitted that the First-tier Tribunal had directed itself appropriately.

Error of law

8. After initial discussions at the beginning of the hearing both representatives agreed that the decision contains material errors of law in relation to the assessment of the appellant's credibility and Article 15c, such that it must be set aside and remade by the First-tier Tribunal. They were right to do so for the reasons I give below.

9. Mr Nicholson acknowledged that the grant of permission did not explicitly refer to the grounds of appeal relating to credibility, but neither did it grant permission on limited grounds only. Mr Diwnycz made it clear that he did not object to the credibility grounds of appeal being considered on the basis that permission had not been expressly limited to the Article 15c point, albeit observations were only made in relation to that point.

Atheist claim

10. The First-tier Tribunal was obliged to take into account the comprehensive adverse factual findings regarding the appellant's credibility in the previous Tribunal decision from 2012. As the First-tier Tribunal observed no new evidence was presented in relation to the past treatment of the appellant in Libya [39]. The First-tier Tribunal was also entitled to consider the appellant's admitted use of past deception as well as the appellant's admission that he relied upon forged documents before the previous Tribunal [39]. These are clearly highly relevant to the appellant's credibility and the First-tier Tribunal was entitled to take them into account. However, the First-tier Tribunal appears to have concluded that the appellant's use of deception in the past is such that he "is not a credible witness" [40]. The FTT has effectively concluded that because the appellant was not believed by the 2012 Tribunal and employed deception in the past, his claim to have become a more committed atheist since that time cannot be believed.

11. The relevant guidance of the Immigration Appeal Tribunal in Devaseelan [2004] UKIAT 000282 includes the following:

"37. ...The first Adjudicator's determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator; but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second Adjudicator's role to consider arguments intended to undermine the first Adjudicator's determination.

39. The second Adjudicator must, however be careful to recognise that the issue before him is not the issue that was before the first Adjudicator. In particular, time has passed; and the situation at the time of the second Adjudicator's determination may be shown to be different from that which obtained previously. Appellants may want to ask the second Adjudicator to consider arguments on issues that were not - or could not be - raised before the first Adjudicator; or evidence that was not - or could not have been - presented to the first Adjudicator."

12. In LD (Algeria) v SSHD [2004] EWCA Civ 804, the Court of Appeal approved the guidelines saying:

"30. Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved. The guidance was expressly subject to this overriding principle."

13. Mr Diwnycz accepted that the First-tier Tribunal has not independently decided the merits of the appellant's evidence that he is an atheist. As he said the First-tier Tribunal has simply "latched on to past credibility findings" without considering all the appellant's evidence in the round. The conclusion that the appellant is not credible is based solely upon the past findings and his past use of deception. Such matters are highly relevant but the First-tier Tribunal erred in law in finding them to be determinative.

14. The First-tier Tribunal has also erred in law in its approach to the evidence from the three witnesses called to give evidence regarding the appellant's atheism. Having arrived in the UK in August 2012 it is perhaps unsurprising that the appellant did not know anyone sufficiently well for them to provide evidence regarding his religious beliefs at a hearing in October 2012. Some four years later at the hearing in October 2016 the witnesses were in much better positions to outline their understanding of the appellant's religious beliefs. In addition, although the First-tier Tribunal properly directed itself to the lower standard of proof [7], it erred in law in inversing the applicable standard of proof in finding at [41] "that there is a reasonable degree of likelihood that the appellant had told [the witnesses] that he is an atheist when this is not the case, to bolster his claim for asylum". The question is not whether, on the lower standard of proof, the appellant has lied to the witnesses, but whether, on the lower standard of truth, he has told the truth.

Article 15c

15. It is clear from FA (Libya: art 15c) Libya CG [2016] UKUT 413 (IAC) that it was necessary for the First-tier Tribunal to conduct a careful assessment of the risk upon return, in light of the various matters highlighted therein suggesting an increase in risk (see paras 11 and 12 of the grounds of appeal), and in failing to do so the First-tier Tribunal has erred in law.

16. Furthermore, Mr Diwnycz candidly accepted that the finding that the appellant could safely return to Tripoli via Tunisia is entirely unsupported by evidence.

Re-making the decision

17. By paragraph 7.2 of the relevant practice statement for appeals on or after 25 September 2012, I must be satisfied that:

"the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 it is appropriate to remit the case to the First-tier Tribunal."

18. Both representatives agreed that there needed to be further fact finding regarding the appellant's claimed atheism and that this should be done in the First-tier Tribunal. Given the nature and extent of the judicial fact finding that is necessary and having regard to the overrising objective I am satisfied that it is appropriate to remit the case to the First-tier Tribunal.

Decision
19. The decision of the First-tier Tribunal involved the making of a material error of law and I set it aside.

20. The decision shall be remade by the First-tier Tribunal.

Directions

(1) The matter shall be listed on the first available date before the First-tier Tribunal with a time estimate of 2.5 hrs.
(2) The appellant's solicitors shall file and serve a skeleton argument outlining his position on two disputed issues (claimed atheism and Article 15c) and the evidence relied upon with page references to the appellant's bundle, 28 days before the hearing.
(3) The respondent shall file and serve a position statement in response 14 days before the hearing.
(4) Arabic, North African interpreter.

Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
24 January 2017