Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02444/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 12 December 2016
On 16th January 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

mr Mohamed Sultan Abdi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Foot (Counsel)
For the Respondent: Mr L Tarlow (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant in this case is a national of Somalia whose claim for asylum was rejected by the respondent. He appealed against this decision and his appeal was heard by First-tier Tribunal Judge Roopnarine-Davies sitting at Taylor House on 15 August 2016. In a decision and reasons promulgated on 26 August 2016 Judge Roopnarine-Davies dismissed the applicant's appeal.
2. The appellant now appeals against this decision with leave granted first by First-tier Tribunal Judge Kelly and then subsequently (on the remaining grounds concerning which Judge Kelly had initially refused permission to appeal) by Upper Tribunal Judge Coker.
3. The main plank of the appellant's appeal is that at the hearing before the First-tier Tribunal the judge had raised for the first time a challenge to the identity of a person who was claimed to be a family member of the appellant and whose evidence was arguably material as to first the risk to the appellant in his home area (because it was said that his family had been forced to flee to Kenya) and secondly to whether or not internal relocation would be available to him in Mogadishu in any event (because if this evidence was correct, it would throw in doubt the judge's finding that the appellant had family whose assistance would be available to him in Mogadishu).
4. In the course of her very persuasive submissions Ms Foot referred in particular to the decision of the Court of Appeal in SH (Afghanistan) by Litigation Friend The Official Solicitor v SSHD [2011] EWCA Civ 1284 where at paragraph 15 it was made clear that the issue which had to be determined when considering whether there had been a procedural irregularity in the refusal to grant an adjournment was whether at the time the adjournment decision was made it was conceivable that had the adjournment been allowed material evidence could have been obtained which would have a bearing on the decision.
5. On behalf of the respondent, Mr Tarlow very fairly said as follows:
"Having heard Ms Foot's submissions, I cannot rely on the Rule 24 reply. I think there is sufficient in this to say that at the time of the adjournment decision the evidence that [the appellant] could have obtained as to the relationship with the person who gave the telephone interview was [that the witness was] in fact a family member. Given that, effectively this must go to the question of fairness."
6. In these circumstances Mr Tarlow did not seek to persuade the Tribunal not to find that there had been a material error of law in Judge Roopnarine-Davies' decision.
7. Having given anxious scrutiny to the submissions which have been made I am obliged to accept that the refusal to allow the appellant an adjournment in order to seek DNA or other evidence establishing the identity of the family member on whose evidence he sought to rely was a material error. I have in mind that this is a protection claim and also that until the hearing the appellant was unaware that any challenge would be made to the identity of the witness upon whose written evidence (or rather evidence obtained over the telephone) might be in doubt. In those circumstances if that evidence was or might be material, fairness required that the appellant be given an opportunity to provide evidence which could allay any doubts as to this witness's identity the judge may have had. That evidence was in my judgment potentially material. First, because if it was the case that the appellant's family had had to flee from their home area to Kenya this, coupled with the other evidence, might have been sufficient to persuade the Tribunal that the appellant would be at risk on return to his home area. Secondly, part of the judge's reasoning for finding that the appellant could in any event relocate to Mogadishu was the adverse credibility findings which she made and in particular her finding that he would have family members in Mogadishu on whose support he could rely. The evidence to which she attached little weight might have had a material bearing on these findings.
8. In light of Presidential guidance which has been given repeatedly I consider that the only fair course now is for this appeal to be remitted back to the First-tier Tribunal for a fresh hearing before any judge other than Judge Roopnarine-Davies, when the issues would have to be considered afresh. I would expect that in these circumstances the appellant will now obtain such DNA or other evidence as is available as a matter of urgency because without such evidence it may be difficult for him to persuade a Tribunal to make a different finding, but that is not a matter for me as the First-tier Tribunal would now have to consider this appeal afresh. I accordingly make the following directions:
Directions
(1) This appeal will be remitted to the First-tier Tribunal sitting at Taylor House to be reheard by any judge other than Judge Roopnarine-Davies.
(2) No findings will be preserved.
(3) The appellant is given permission to file further evidence in support of his claim, and in particular evidence relating to the identity of any witness on whose evidence he intends to rely. Such evidence must be filed with the First-tier Tribunal and served on the appellant by no later than Friday 27 January 2017. In the event that the appellant wishes to seek an extension of time in which to serve this evidence on the respondent and file it with the Tribunal she should make such application to the First-tier Tribunal.
(4) This appeal should be listed (at Taylor House) on the first available date after Monday 6 February 2017.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 9 January 2017