Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01612/2016

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 19th April 2017
On 21st April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MRS HARMEET [A]
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. J Markus, instructed by IAS (Manchester)
For the Respondent: Mr. G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Devlin promulgated on 16th December 2016. The underlying decision that was the subject of the appeal before the First-tier Tribunal (“FtT”) was the decision of the respondent dated 3rd February 2016 to refuse the appellant’s protection claim.
2. The appellant is an Afghan national. She is a Sikh and before her arrival in the UK, she lived with her husband and two daughters, in Kabul. The date upon which she arrived in the UK is not known but on 22nd September 2015, a claim for asylum was made. The claim was refused for the reasons set out in the respondent’s decision of 3rd February 2016 and it was that decision, that was the subject of the appeal before the FtT. The respondent accepted that the appellant is an Afghan national and that she is of the Sikh faith. The respondent also accepted that the appellant’s account of events is “internally consistent and detailed”. The respondent therefore accepted the material facts of the claim, including her account of the threats/harassment that the appellant and her family received.
3. At the hearing before the FtT, the appellant gave evidence and she was cross examined. The Judge records at paragraph [41] of his decision, that the respondent had accepted that the appellant’s account of events is internally consistent and detailed. However, the Judge went on to note several discrepancies that he had identified, and at paragraph [87] of his decision found that he could not be satisfied that the appellant’s account has been established, even to the lower standard of proof. At paragraph [89] of his decision, the Judge states:
“I do not find the Appellant to be generally credible.”
4. The Judge went on to assess the appellant’s claim and states:
“123. However, when I come to look at everything in the round, I find that I cannot be satisfied that the treatment of which she complains –even taken in combination with other adverse factors (e.g, general atmosphere of insecurity in the country of origin) – is sufficient serious or severe as to amount to “persecution” for the purposes of Article 1A of the Refugee Convention”
…
138. In any event, I do not find the Appellant to be generally credible, and there is no independent evidence before me that she has no extended family in Afghanistan, or that she would be unable to access (sic) the informal safety net provided by the local Sikh community or the Gurdwara.
…
149. Given my doubts about the Appellant’s general credibility, I find that I cannot be satisfied, even to the lower standard of proof, that she and her family are unable to speak any Pashto….
154. However, I have found the Appellant to be generally incredible, and she has failed to produce any independent evidence as to her current financial circumstances….”
5. What is clear from the extracts of the decision that I have set out above, is that the Judge’s assessment of the claim was throughout infected by the adverse credibility finding that he had made.
6. The appellant submits it was not open to the Judge to make the adverse credibility findings that he did, in light of the concession made by the respondent, and the fact that during the hearing, none of the discrepancies that have been identified by the Judge were put to the appellant. Furthermore, it unsurprising that the appellant had attended the hearing without any evidence from her husband and daughters, since as far as she was aware, her account of events was not in issue. The appellant submits that the decision undermines the rules of natural justice because the appellant was given no opportunity to explain the discrepancies, if indeed they are discrepancies.
7. Permission to appeal was granted by FtT Judge Dineen on 13th January 2017. The matter comes before me to consider whether the decision of the FtT involved the making of a material error of law, and if so, to remake the decision.
8. The respondent has filed a rule 24 response dated 26th January 2017 in which the respondent submitted that the appeal is opposed. However, at the hearing of the appeal before me, Mr Harrison confirmed that having had an opportunity of looking over the Presenting Officer’s notes of the hearing before the FtT, it seems that the credibility of the appellant did not appear to be in issue, and the discrepancies that have been identified in the decision, do not appear to have been put to the appellant. He concedes that the appellant was given no opportunity to address any of the matters that might have been of concern to the Tribunal, and he accepts that in the circumstances, the decision of the FtT cannot stand. He concedes that the decision of the FtT contains a material error of law and should be set aside.
9. I remind myself that in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC) the Upper Tribunal held that where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to a material error of law requiring the decision of the First-Tier Tribunal (the “FtT”) to be set aside. The authorities referred to by the Upper Tribunal in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC) make it clear that upon an appeal such as this, the criterion to be applied is fairness and not reasonableness.
10. I must then consider whether to remit the case to the FtT, or to re-make the decision myself. As the Upper Tribunal did in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC), I consider that where a first instance decision is set aside on the basis of an error of law involving the deprivation of the appellants right to a fair hearing, the appropriate course will be to remit the matter to a newly constituted FtT for a fresh hearing.
11. The appeal is allowed. The decision of the FtT has identified what may be discrepancies in the account of the appellant. Because the respondent now accepts that the decision of the FtT is infected by procedural unfairness, I have not had cause to examine whether there are discrepancies in the account of the appellant. For the avoidance of doubt, the appellant must at any future hearing, be ready to deal with such matters notwithstanding the concession made by the respondent in her decision that the appellant was threatened/harassed by Muslim individuals in Kabul.
Notice of Decision
12. The appeal is allowed and the appeal is remitted to a newly constituted First-tier Tribunal for a fresh hearing of the appeal with no findings preserved.
13. No anonymity direction was made by the FtT. There has been no application for an anonymity direction before me.

Signed Date 20th April 2017

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed

Deputy Upper Tribunal Judge Mandalia