Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01434/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 18 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

E T A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Elliott-Kelly, Counsel
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS
Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), we 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 or his wife. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. The appellant is a citizen of Eritrea born on 27 March 1992. He appealed against a decision of the respondent dated 10 September 2015 to refuse his asylum claim on the grounds of his sexuality. His appeal came before Judge of the First-tier Tribunal David Taylor ("the FTTJ") who, in a decision promulgated on 21 April 2016, dismissed his appeal on asylum and human rights grounds.
2. The appellant sought permission to appeal. This was granted by Judge of the First-tier Tribunal Fisher on 17 May 2016 who noted the following:
"2. ? [The grounds] assert that the Judge erred in his approach to the 2013 determination or, in the alternative, that he failed to consider material evidence in the present appeal. The grounds also claim that the Judge took into account irrelevant matters, and conclude by alleging that he failed to determine all of the issues before him.
3. The Appellant's previous appeal in 2013 was advanced solely on Article 8 grounds, although it would appear that there was a reference to the decision in KA during the hearing. The appeal before the Judge raised Articles 3, 4, 5 and 8 of the ECHR. Arguably, therefore, the Judge's assertion that the Appellant had previously relied principally on Article 8 was an error, and this infected his conclusion that the current appeal was "pursued by way of what is no more than a repetition of the human rights arguments" advanced in 2013. Further, it is arguable that the Judge failed to adequately consider the up to date evidence of the risk to forced returnees, and the conditions in Eritrean military service. It is also arguable that the Appellant's decision not to pursue his asylum appeal on the grounds of his sexual orientation was not a factor which ought to have been considered as damaging his overall credibility."
4. I consider that all four grounds raised have some merit, and so I grant permission to appeal on each of them."
3. Thus the appeal came before me.
Submissions
4. Ms Elliott-Kelly noted that MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 00443 (IAC) had been handed down the afternoon before the hearing before me. She submitted that the FTTJ's findings were flawed in numerous ways: he had not addressed the Article 3, 4 or 5 claims. The earlier determination in 2013, on which he relied, had addressed only the appellant's Article 8 claim at the time yet had been taken by the FTTJ to cover all the issues raised in 2016. There were no references in the FTTJ's decision to the current position in Eritrea for forced returnees. There was no analysis of the appellant's evidence, simply reliance on the earlier determination. Rather, the findings in that earlier determination should have been taken into account in the light of current background material regarding risk on return. These failures were material because the appellant was not a draft evader; he had left Eritrea lawfully; and his parents had refugee status in the UK. These matters should have been the subject of findings of fact by the FTTJ in his assessment of the current risk on return. It had been pleaded before the FTTJ that the appellant, although a person who had exited lawfully as a child, may be at risk on return on Article 4 and 3 grounds as a result of forced labour (conscription). This issue had not been addressed at all by the FTTJ. This was a material breach, in the light of the clarification in MST that where a person was likely to be subject to conscription (as was the case with this appellant) there was likely to be a breach of Article 4 and 3 [429] of MST. It was relevant that the respondent had accepted, before the FTTJ, that the appellant would be liable to conscription.
5. Ms Elliott-Kelly further submitted that whilst it had been unattractive for the appellant to withdraw his asylum claim based on his sexuality, the appellant's credibility had no bearing on the Articles 3 and 4 assessments. Similarly, his criminal history in the UK had no bearing either.
6. Mr Avery, for the respondent, indicated that he could see why the FTTJ had given the appellant "short shrift": the appellant had been the subject of an earlier deportation hearing at which he could have raised the risk on return yet at which he had focussed on his Article 8 rights. He noted that the key risk factors of having left Eritrea illegally and evading the draft did not apply to this appellant. He submitted that, insofar as the FTTJ had considered the findings of the earlier tribunal, there was no fundamental difference in the two tribunals' findings, the appellant being in neither of the risk categories identified. Mr Avery accepted that, Article 4 having been raised substantively in the appellant's counsel's skeleton argument, the FTTJ should have made findings on this issue, albeit there was a lack of country guidance of relevance. He accepted that, with the benefit of hindsight, and given the fact the issue has now been "flagged" in MST, he could not suggest it was right for the FTTJ to have failed to address the issue. He accepted that the FTTJ's failure to do so was a material error of law.
Discussion and Findings
7. The FTTJ's decision is flawed in various respects. The determination promulgated in 2013 was limited to the appellant's Article 8 claim. It is quite clear from [12] of that determination that the appellant did not seek to pursue an asylum claim and that the appeal was based solely on Article 8. Quite properly the panel took into account in 2013 the fact the appellant would be of draft age on return but this was done in the context of his Article 8 claim, not in the context of considering claims pursuant to the Refugee Convention or Articles 3, 4 and 5 (as was the case in 2016). There was no consideration of these latter issues in 2013. Whilst the FTTJ states at [16(i)] that the determination in 2013 is his starting point he has inaccurately stated that "at [12] the panel noted that Ms Manyara [sic], counsel for the appellant, confirmed that the appellant raised no issues under the refugee convention but relied principally on Article 8" (my emphasis). This is not an accurate reflection of the panel's decision in 2013 which states at [12] "Miss Manyarara confirmed that the Appellant wished to rely solely upon Article 8 [my emphasis] and there were no issues to raise under the Refugee Convention but she wished [the panel] to note he was of "draft age" ? she confirmed [the panel's] understanding that the Appellant had left Eritrea legally". Whilst this was a vague submission, and the panel acknowledged as much in 2013, it is quite clear that the panel was only required to make findings in relation to the Article 8 claim. As requested, they took into account the appellant was of draft age and had exited Eritrea lawfully and referred to the guidance in KA (draft-related risk categories) Eritrea CG [2005] UKAIT 00165 but only in the context of the Article 8 assessment. It was wrong for the FTTJ in 2016 to find that the appellant had relied "principally on Article 8" at the earlier hearing. There were no other issues before the panel in 2013.
8. It was also wrong for the FTTJ to find that the appeal before him was "pursued by way of what is no more than a repetition of the human rights arguments that had been before the First-tier Tribunal panel in 2013". As is quite clear from the appellant's counsel's skeleton argument, the appellant relied in 2016 not only on the Refugee Convention but also Articles 3, 4, 5 and 8. The FTTJ states at [16(viii)] that "this appeal has been pursued as a means to reopen and in the hope of redeciding the issues that have already been determined by the deportation appeal panel ? ". That cannot be the case, given that additional claims were made in 2016 over and above those before the panel in 2013. Irrespective of whether the appellant had had the opportunity of pursuing those claims in 2013, he had been granted leave to appeal against the decision of the respondent in September 2015 and was entitled to be heard on the grounds pursued and those grounds included claims which were not before the FTT in 2013. It was an error in law therefore for the FTTJ in 2016 to dismiss the appeal solely by reference to the earlier decision. The appellant was not asking the FTTJ to depart from the earlier findings but to apply the guidance in Deevaseelan v SSHD [2002] UKIAT 000702 and take them as his starting point. This he did not do. He made no findings on the appellant's current circumstances and the current risk on return in the wider context of Articles 3, 4 and 5, but merely relied on the earlier findings of the panel in 2013 in relation to Article 8.
9. The lack of country guidance on Article 4 issues arising from the risk of conscription on return does not excuse the failure to consider the issue at all, as Mr Avery rightly conceded. MST now clarifies the position insofar as conscription in Eritrea is concerned; that clarification, albeit with the benefit of hindsight, demonstrates at [429] that the outcome of the appellant's appeal, insofar as the risk of conscription and forced labour is concerned, might have been different had the FTTJ made a proper assessment of the current evidence and background material before him and appropriate findings of fact as to the appellant's circumstances on return.
10. I am also satisfied that the FTTJ gave inappropriate weight to the adverse credibility finding made by the panel in 2013 and the appellant's withdrawal of his earlier asylum claim on the basis of his sexuality. This was also the case with the appellant's criminal convictions and history. These matters are of no relevance to the risk of conscription on return.
11. Viewed in the round, I am satisfied that the FTTJ's reasoning is unsafe; there are material errors of law in his decision and it must be set aside. Both Ms Elliott-Kelly and Mr Avery requested that the matter be remitted to the First-tier Tribunal given they had had little opportunity to consider the new guidance in MST which had a direct bearing on the appellant's Article 3 and 4 claims. Mr Avery said that the respondent had not as yet issued an "official line" on the judgment, given its recent publication and he was not therefore in a position to make detailed submissions. Ms Elliott-Kelly also sought further time to consider the impact of MST on the appellant's case; she considered that, whilst it was helpful to the appellant on Articles 4 and 3, it did not address his particular circumstances in that he had left Eritrea in 2005 whereas the appellants in MST had left prior to 2008. Those instructing her had telephoned the Tribunal in the knowledge that MST would be issued shortly; they had been told the hearing before me would be on error of law only. She was not therefore ready to proceed.
12. In the circumstances, I agree that the matter should be remitted to the First-tier Tribunal for a fresh hearing.
Decision
13. The making of the decision of the First-tier Tribunal involved the making of material errors on points of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ David Taylor.
14. The anonymity direction made in the First-tier Tribunal is maintained.

A M Black

Deputy Upper Tribunal Judge Dated: 17 October 2016

DIRECTIONS

1. Any further documentary evidence relied upon by either party is to be filed with the Tribunal and served upon the other party by no later than 14 days before the date of the hearing in the First Tier Tribunal.

2. The appeal is listed at Taylor House with a time estimate of three hours to be heard at 10.00 am on ?????????.

3. A Tigrinya interpreter is required.

A M Black
Deputy Upper Tribunal Judge Dated: 17 October 2016