Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01384/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 22nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

s a k
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Paramjorthy, Counsel instructed by Mansfield Chambers
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Appellant is a citizen of Sri Lanka whose date of birth is recorded as [ ] 1986. He made application for international protection as a refugee but on 17th September 2015 his application was refused; the Appellant appealed. On 5th May 2016 the appeal was heard by Judge of the First-tier Tribunal Anstis sitting at Hatton Cross. Having considered the evidence Judge Anstis dismissed the appeal.
2. It is important to note in this case that there were certain concessions made by the Secretary of State in the letter of refusal. Of particular importance were: the acceptance that the Appellant had been abducted by the LTTE in 2003/2004; that he had been imprisoned by the Karuna group in 2006 but subsequently released; and particularly importantly that the Appellant had been arrested but then released on bail by the Sri Lankan authorities in 2008. What the Secretary of State did not accept was that there was any continuing interest in the Appellant and that was something with which the judge agreed in making his findings.
3. Not content with that decision by Notice dated 3rd June 2016 the Appellant made application for permission to appeal to the Upper Tribunal. On 24th June 2016, Judge of the First-tier Tribunal Grimmett granted permission on the basis that the judge had failed, arguably, to consider the risks to the Appellant of being stopped when returned to Sri Lanka as a person who had left the country unlawfully whilst on bail.
4. On the basis of the evidence, as the judge appreciated it, there was no sufficient explanation as to why it was that all of a sudden in 2015 the authorities had become interested in the Appellant. The Appellant in his witness statement had referred to "continuous interest" but the judge found, given the immigration history, that the first such event was in April 2015 and was unwilling to accept that it was reasonably likely that there was continuing interest; the judge spells this out at paragraph 35 of the decision.
"His evidence as to the recent interest of the Sri Lankan authorities in him is improbable, does not accord with what would be expected given the country guidance in GJ, and is not supported by any other evidence - not even that of friends or his family. Accordingly, I do not accept what the Appellant says about the recent interest of the authorities in him, and do not accept that he is at real risk of persecution on a return to Sri Lanka."
5. I was grateful to Mr Paramjorthy who took me to the record of interview in this case. From question 186, the interview focused on any continuing interest in the Appellant but of particular importance was the answer given by the Appellant to question 197. The question was as follows:
"Do you not think that if they didn't do anything immediately after you stopped reporting they are not going to be interested in you now?"
The Appellant answered:
"Because I was bailed out and I was not in Sri Lanka and my father was reporting instead of me."
6. In that answer is a point which it would seem the judge did not have in mind when making the decision in this case. It is important because it at least explains why, if that part of the Appellant's evidence is accepted, the authorities suddenly became interested in the Appellant; his father had stopped reporting. That is clearly a matter that was deserving of further enquiry at the hearing.
7. I am grateful to Mr Walker who accepts that this aspect of the Appellant's claim rightly requires further consideration. I make plain that he does not accept that the Appellant will necessarily be entitled to succeed in this appeal but he does accept that this decision cannot stand because of a failure properly to engage with material evidence.
8. In those circumstances, having identified, as I have, a material error of law, I am required to consider whether it would be appropriate to remake the decision in the Upper Tribunal or remit it for further consideration below.
9. Both Mr Walker and Mr Paramjorthy urged me to remit the matter to the First-tier Tribunal but so far as Mr Paramjorthy is concerned with the concessions preserved. Whether concessions are withdrawn or not is a matter entirely for the Secretary of State. I am not suggesting that for one moment that the Secretary of State should withdraw those concessions, I am simply indicating what the position is, but as matters stand, the matter will be remitted to the First-tier Tribunal.
Directions
1. There will be a Tamil interpreter.
2. Time estimate - 3 hours
3. Concessions made by the Secretary of State preserved unless withdrawn and upon proper notice to the Appellant having regard to the guidance in NR (Jamaica) [2005] UKIAT 0008.
4. To be heard before any judge other than Judge Anstis.

Notice of Decision

The decision of the First-tier Tribunal contained a material error of law and is set aside. The matter will be remitted to the First-tier Tribunal to be remade in accordance with the Directions contained herein.

Signed Date 19 August 2016

Deputy Upper Tribunal Judge Zucker