Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02473/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th June 2019
On 01st July 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

m D K
(anonymity direction made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lee counsel instructed by Tuckers Solicitors
For the Respondent: Ms S Jones senior Home Office Presenting Officer

DECISION AND REASONS

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

1. Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. 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 their 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.
2. The Appellant appeals the decision of First-tier Tribunal Judge Carroll promulgated on 22 February 2019 whereby she dismissed the appeal against the decision to refuse to grant asylum or ancillary protection or leave on Family and Private Life grounds on the basis of the appellant's fear of ill treatment at the hands of her rapist and return as a lone woman with vulnerabilities to Albania. Permission to appeal was granted at the First-tier Tribunal by Judge Bristow on 08 May 2019 on the basis that it was arguable that the Judge had not given adequate reasoning in respect of credibility, having taken account of adverse credibility matters involving her father's immigration and nationality history which were not raised by the respondent and about which the appellant had had no opportunity to reply.
3. I find that the criticism of the Judge's assessment of the credibility of the father are unmerited. Contrary to the grounds the adverse findings do rely on matters which were put into issue in the reasons for refusal letter, and, again contrary to the grounds, and as a witness statement from the father shows the appellant was aware of the dispute but took the opportunity to provide his evidence to refute the assertions. The judge was entitled to assess his evidence and find that he lacked credibility, giving evidence that was expedient to the immigration benefit of his daughter remaining in the UK. The judge was entitled to conclude that the father's evidence as to what support and family would be available to the appellant on her return to Albania was unreliable. I am satisfied that the findings in respect of the father are not infected by any error.
4. However there is merit, as recognised by Ms Jones, in the grounds' criticism that the FTTJ allowed the adverse credibility findings in respect of her father to infect the assessment of the appellant's credibility in respect of her evidence as to having suffered a rape and to have felt at threat from her rapist, and of her understanding of the availability of family support in Albania. As Mr Lee described it the appellant and her father have been lumped together. I am satisfied that that amounted to an error of law. Ms Jones did not seek to argue that this was a case where even if the error were corrected there could be no other outcome.
5. The other matters relied on in the grounds to criticise the judge's conclusions that the appellant's evidence as to the use of social media was inconsistent, and that the supporting documents downloaded from the internet were lacking supporting evidence as to the nature, and therefore reliability, of the reporting outlet, had less merit but in light of the error identified being sufficient to set the core credibility findings about the appellant aside, those are all matters that will be part of the rehearing.
6. I find that the protection decision of the First tier Tribunal is vitiated by legal error in respect of the assessment of credibility of the appellant. The decision must be remade.
7. In respect of the grounds going to Article 8 ECHR there is merit in the criticism that when the judge concluded that the appellant did not enjoy any protected family life in the UK with her father, with whom she had lived since he engineered her illegal entry here in 2015 at the age of 15, the threshold of engagement in terms of Article 8 was set too high, but in any event the Article 8 assessment is based at least in part on what I have found to be an erroneous credibility assessment of the appellant, so that there was no issue before me that the Article 8 position must also be redecided.
8. I did not accept the contention that the credibility issues of the father and daughter were so intertwined that if the findings in respect of the appellant were in error those in respect of the father should also be set aside and the case heard de novo. The point is that there needed to be separate consideration of their credibility. The adverse credibility findings in respect of the father are preserved.
9. Both representatives were agreed that the matter should be remitted for a new assessment of the appellant and her credibility with new findings of fact sufficient to determine the claim.
10. The fact-finding exercise is considerable to the point that reluctantly, as the appeal has been before the First-tier twice already, I agree with the view of the representatives that the appeal should again be remitted to the First-tier Tribunal.

Signed Date 27 June 2019

Deputy Upper Tribunal Judge Davidge