Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01657/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 November 2016
On 3 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

S B
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Jegarajah of Counsel, Mansfield Chambers
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a national of Sri Lanka born on 22 July 1985. Details of his background and immigration history are contained in the respondent's decision letter.

2. The applicant was granted permission to appeal in respect of the determination of First-tier Tribunal Judge Monson promulgated on 27 August 2016 dismissing his appeal both against the refusal of asylum and the refusal of a residence card as the extended family member of an EEA national.

3. The challenge to the EEA limb of the determination was no longer pursued at the hearing before me on 2 November 2016 in light of recent case law but submissions were made in respect of the judge's approach to, and findings on, the claim for protection.

4. Ms Jegarajah made submissions on the failing of the First-tier Tribunal Judge to record much of the oral evidence called and of the submissions made by Counsel at the initial hearing. She referred to the fairness principles set out in Wagner (advocates' conduct - fair hearing) and relied on a statement and contemporaneous record of proceedings prepared by Mr Paramjorthy who represented the appellant at that hearing and which set out substantial omissions in the evidence recorded by the judge in his determination. She pointed out that the judge failed to follow the rationale in KV (scarring - medical evidence) [2014] UKUT 230 as to whether there were presenting features in the appellant's case of self-inflicted or third party inflicted injuries and submitted that these suspicions were not put to the appellant at the hearing as they should have been. It followed that the judge's assessment of the medical evidence was flawed and he was not legally entitled to reach the finding contained out at paragraph 68.

5. Ms Ahmad responded briefly. She very properly conceded that she would struggle to argue against the submission that the judge did not put his concerns about self-inflicted injuries to the appellant. In the circumstances, I did not need to hear further from Ms Jegarajah and indicated that I would be setting aside the decision of Judge Monson.

Conclusions

6. It is plain that Judge Monson did not follow the guidance of KV when assessing the medical evidence and the appellant's account of torture. I accept Ms Jegarajah's submission that the appellant was asked closed questions at interview about the ill-treatment he suffered and that his failure to mention cigarette burns was not determinative. I also accept that the judge did not conduct himself with the principles of fairness in failing to put to the appellant his concerns about what he found to be self-inflicted injuries. The appellant should have been given an opportunity to respond to that allegation, which had not been raised by the respondent. As a result, I am unable to uphold the decision on asylum and I set it aside.

7. Ms Jegarajah submitted that if I were to find for the appellant on this point, there would be no need to delve further into the other issues of procedural unfairness that had been raised. Whilst her grounds on that matter do appear to have merit, it is enough for the appellant's purposes that the decision on the protection claim is set aside for the reasons I have already given.

8. There being no issue now taken with the findings under the EEA Regulations, that part of the appeal is upheld.

Decision

9. The decision in so far as it relates to the claim for protection contains material errors of law and is set aside. The matter shall be transferred back to the First-tier Tribunal for consideration afresh by a different judge and for a fresh decision to be made on the issue of protection.

Directions

10. No later than 7 working days prior to the hearing, the appellant is to serve upon the Tribunal and the respondent a paginated bundle of all the documentary evidence to be relied on including those documents already submitted.

Signed

Judge of the Upper Tribunal

Date: 2 November 2016