Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01285/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 13 December 2016
On 19 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

b d
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr P J Lewis instructed by Theva Solicitors

DECISION AND REASONS
1. This appeal is subject to an anonymity direction made by the Upper Tribunal in its decision promulgated on 15 July 2016.
Background
2. BD (hereafter "the claimant") is a citizen of Sri Lanka who was born in 1983. He arrived in the United Kingdom on 29 March 2010 as the dependent of his wife who had leave as a Tier 4 (General) Student. His leave was valid until 31 October 2010. Thereafter, he overstayed.
3. On 24 March 2015, the claimant claimed asylum. He claimed that he was at risk on return to Sri Lanka because of his association with a Tamil who was involved with the LTTE. The claimant did not assert he had any involvement personally with the LTTE and he is an ethnic Sinhalese. He claimed that, nevertheless, since coming to the UK in 2010 his family had been visited by the Sri Lankan authorities who were expressing an interest in him. He claimed that, as a consequence, he was at risk of persecution for a Convention reason on return. In addition, the claimant claimed that he was at risk of suicide if he returned to Sri Lanka and so his return would breach Art 3 of the ECHR.
4. On 4 September 2015, the Secretary of State refused the claimant's claim for asylum, humanitarian protection and under Arts 3 and 8 of the ECHR.
The Appeal to the First-tier Tribunal
5. The claimant appealed to the First-tier Tribunal. In a decision promulgated on 22 February 2016, Judge Freer dismissed the claimant's appeal based upon asylum and humanitarian protection grounds. However, he allowed the claimant's appeal under Art 3 of the ECHR on the basis that there was a real risk that he would commit suicide if returned to Sri Lanka.
The Appeal to the Upper Tribunal
6. The Secretary of State then sought permission to appeal to the Upper Tribunal against the judge's decision to allow the appeal under Art 3 of the ECHR. On 15 March 2016, the First-tier Tribunal (Judge Frankish) granted the Secretary of State permission to appeal.
7. The appeal initially came before me on 5 July 2016.
8. Following argument at the hearing on 5 July 2016, in a decision promulgated on 15 July 2016, I concluded that the Secretary of State's appeal should be allowed on the basis that the judge had materially erred in law in allowing the claimant's appeal under Art 3 based upon impact on his mental health if returned to Sri Lanka. The decision in respect of Art 3 would need to be re-made.
9. At that hearing, Mr Lewis who (then and now) represented the appellant sought to also challenge on behalf of the appellant Judge Freer's decision to dismiss the appeal on asylum and humanitarian protection grounds. No application had been made by the appellant for permission to appeal Judge Freer's decision to dismiss his appeal on asylum and humanitarian protection grounds. In the absence of an application for permission to appeal which had been granted, I concluded that the appellant could not challenge the judge's adverse decision on asylum and humanitarian protection grounds.
10. As a consequence, I directed that the appeal should be relisted before me in order to remake the decision under Art 3.
11. Following my decision, the appellant lodged an out-of-time application for permission to appeal against Judge Freer's decision to dismiss the appeal on asylum and humanitarian protection grounds. Sitting as a First-tier Tribunal Judge, I dealt with that application on paper. In a decision dated 17 November 2016, I extended time for that application and, on the merits, granted the appellant permission to appeal.
12. Thereafter, I directed that at the relisted hearing before the Upper Tribunal scheduled for 13 December 2016, the Upper Tribunal would consider the appellant's grounds challenging Judge Freer's decision on the asylum claim.
13. At that hearing, Mr Richards accepted that Judge Freer's decision to dismiss the appellant's appeal on asylum grounds involved an error of law and could not stand. Both Mr Richards and Mr Lewis invited me to now remit the appeal to the First-tier Tribunal so that the appeal could be reheard as a whole. Mr Lewis accepted that it was not possible to 'cherry pick' any of the judge's findings and that that hearing should be de novo.
Decision and Disposal
14. In the light of Mr Richard's concession, which was entirely properly made on the basis of the appellant's grounds, I set aside the decision of the First-tier Tribunal to dismiss the appellant's appeal on asylum grounds as it involved the making of an error of law.
15. As a consequence, the decision of the First-tier Tribunal must be remade in respect of all the appellant's grounds of appeal upon which he relied before the FtT, namely asylum, humanitarian protection and human rights grounds.
16. As the hearing before me was, in fact, a continuation of the error of law hearing on 5 July 2016, it remains open to me to decide whether the appeal should be remitted to the First-tier Tribunal or retained in the Upper Tribunal so that the decision can be remade here.
17. In the light of the parties' submissions, it is appropriate that this appeal is remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Freer.

Signed

A Grubb
Judge of the Upper Tribunal