PA/01543/2016

• Status of case: Unreported
• Hearing date: 8 Nov 2016
• Promulgation date: 16 Nov 2016
• Publication date: 2 Sep 2020
• Last updated on: 2 Sep 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01543/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 16 November 2016



Before

UPPER TRIBUNAL JUDGE PERKINS


Between

S M M
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms M Benitez, Counsel, instructed by Sentinel Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because the First-tier Tribunal has made a similar order and there is invariably a concern in protection cases that publicity might create a risk that would not otherwise exist.
2. This is an appeal brought against a decision of the First-tier Tribunal dismissing the appellant's appeal against a decision of the Secretary of State refusing him asylum. The appeal has been challenged by detailed grounds prepared by Mr James Collins of Counsel, who could not appear before the First-tier Tribunal Judge but who, if I may say so, has set out with commendable brevity and clarity his criticisms of its decision.
3. The point that particularly concerns me and is of itself sufficient to set aside the decision of the First-tier Tribunal is that the judge has made adverse findings contrary to points that were accepted by the Secretary of State. These are encapsulated at grounds 7 and 8 where the First-tier Tribunal Judge is criticised because the judge criticised the appellant for not producing evidence that he had lived in Kenya when the Secretary of State accepted that he had lived in Kenya.
4. Of course the judge is not obliged to accept any finding by the Secretary of State but it is dangerous to depart from a finding of the Secretary of State without giving the appellant notice of that intention. That did not happen here and it is quite clear to me that although the decision might be seen as a sound decision if it is looked at in isolation it is not legally sustainable because it takes points against the appellant that ought not to have been in issue without giving notice.
5. Nothing can be saved. This is a decision that has to be set aside and the case has to be determined again in the First-tier Tribunal because the appellant is entitled to legally sound findings of fact. That therefore is my decision.
Notice of Decision
6. The First-tier Tribunal erred in law. I allow the appeal to the extent that I set aside its decision and direct that the appeal be heard again in the First-tier Tribunal.


Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 November 2016