Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA024472015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd June 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

K R
(ANONYMITY DIRECTION MAINTAINED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms G Thomas, Counsel; instructed by Freemans Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals with permission against a decision of First-tier Tribunal Judge Walker dismissing the appeal against the Respondent's decision refusing to grant him asylum, humanitarian protection and on the basis of his human rights claims.
2. The Appellant appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Andrew on all grounds. The grounds upon which permission was granted may be summarised as follows:
(i) It is arguable that the judge failed to make findings regarding the dissemination of the Appellant's name via social media, namely a Facebook post on the Facebook page of [AA].
(ii) It is arguable that the judge erred in not considering the correct test to be applied regarding internal relocation pursuant to Januzi v Secretary of State for the Home Department [2006] 2 AC 426.
(iii) It is arguable that the judge erred in failing to consider or give reasons for rejecting the Appellant's objective country evidence, namely in the form of the Danish Immigration Service's report dated June 2014.
(iv) It is arguable that the judge erred in his consideration of the ambit of Article 1D of the Refugee Convention.

Error of Law
3. At the close of submissions, I indicated that I would reserve my decision, which I shall now give. I find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.
4. In respect of Ground 1 it was said that a central tenet of the Appellant's case, namely the fact that his name had been disseminated on Facebook on [AA]'s Facebook page, had not been considered and that this material was unchallenged in the refusal letter or at the hearing which showed that the risk that the Appellant faced was not confined to the camp where he previously lived.
5. In respect of this ground I take into account Mr Duffy's submissions that it is difficult to see in what terms the post existed or the comments were made. This is because the Facebook post itself was not sought or requested by the Respondent however neither was it voluntarily put forward by the Appellant nor thought to be needed given that it was not challenged in the reasons for refusal letter.
6. Ms Thomas was forced to accept that the Facebook post was not mentioned by her in her skeleton argument nor in the Appellant's witness statement. However, she highlighted that this was not a case in which the Appellant's credibility had been placed in issue and indeed there are no adverse credibility findings made against the Appellant by Judge Walker. Had this been the sole ground of complaint the error would not have been material. However, in concert with the remaining errors which I discuss below, it did contribute to a material error such that the decision should be set aside.
7. Turning to Ground 2 concerning the internal relocation to Tripoli and the assessment of whether that would be unduly harsh, Mr Duffy quite rightly pointed out that the judge's assessment was on the basis that the risk to the Appellant existed only within the camp and that he did not encounter any adverse interest when he was living in Tripoli with his aunt.
8. Ms Thomas, however, rightly highlights that such a view presumes that the Appellant would have been at large whereas the fact remains that the Appellant was in hiding for fear of his safety and consequently there was no assessment of whether returning to that status quo would be unduly harsh given that the fact of his remaining in hiding was not challenged. Therefore, whilst I note that the judge's view was that the risk was confined to the camp, that finding cannot be complete without an assessment of whether the risk is truly confined given the fact that the Appellant was in hiding in Tripoli, which was not challenged thus far. Without such an assessment, the conclusion is incomplete.
9. Turning to Ground 3 and the failure to deal with the objective evidence put forward by the Appellant, namely the Danish Immigration Service's report, Mr Duffy rationalises this omission by virtue of the fact that the material would not have had a bearing on the result of the appeal. However, I do note that the material was extensively referenced at paragraph 12 of Ms Thomas' skeleton argument and consequently the fact that it was not considered in and of itself is a concern. Moreover, the fact that the material was more recent than the material relied upon by the Respondent meant that it should have been looked at as the most up-to-date objective evidence before the First-tier Tribunal, and its relevance and any weight to be attributed should have been assessed before the judge could prefer or focus solely upon the objective country evidence from the Respondent.
10. Turning to Ground 4 and the treatment of the Appellant's claim and Article 1D of the Refugee Convention, Ms Thomas highlighted that the first question, which was answered, was whether the Appellant was a documented Palestinian in receipt of assistance from UNWRA. However, the second question, which was not considered, was whether the Appellant was in receipt of assistance any longer given that he was forced to leave the country, which was a matter beyond his control.
11. This was said to be important given that the Secretary of State accepted that the Appellant had been threatened by Ansar Allah and hence left the country, which is confirmed at paragraph 33 of the Reasons for Refusal letter and which omission sits uneasily with the judgment of El Kott, the citation of which is as follows: Abed El Karem El Kott and others v Bevandorlasi es Allampolgarsagi Hivatal (Directive 2004/83/EC) Case C-364/11 in which the European Court of Justice held that a person who had been "forced to leave for reasons unconnected with that person's will ? may lead to a finding that the assistance from which that person benefitted has ceased" (see [59] of the judgment). I accept Ms Thomas' submissions on this point and this ground points to an error also.
12. There was a further matter which gave me cause for concern, which I also canvassed with the parties, which was the finding at paragraph 35 of the judgment that the Appellant did not face any risks or problems at the airport on exit. This finding was made against the reference to the UNHCR report by Ms Thomas in her skeleton argument which mentioned that "Hezbollah dominates security at the airport, so the group would be able to track anyone directly from entry to Lebanon".
13. Whilst the objective material admits that Hezbollah dominates security at the airport, the fact that the Appellant was able to exit the country notwithstanding Hezbollah's presence at the airport in and of itself should not mean that he would not be at risk on return. Indeed, were this to be so, the same would follow and apply to all Appellants who were able to pass through the airport and arrive in the United Kingdom to claim asylum.
14. Consequently, taking these minor errors in the determination as a whole, I am just satisfied that there is overall a material error in the determination such that it should be set aside and consequently the findings are not preserved.
15. In light of the above findings, the appeal shall be remitted to the First-tier Tribunal to be heard de novo.

Notice of Decision
16. The appeal to the Upper Tribunal is allowed.
17. The decision of the First-tier Tribunal is set aside and the appeal is remitted to the First-tier Tribunal to be heard by a differently constituted bench.
18. I maintain the anonymity direction made by the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10 June 2016

Deputy Upper Tribunal Judge Saini