Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02523/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 28 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

h c l
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. G. Lee of Counsel, instructed by ATM Law Solicitors
For the Respondent: Ms J. Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge K. Swinnerton, promulgated on 13 April 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant asylum.
2. As this is an asylum case I make an anonymity direction.
3. Permission to appeal was granted as follows:
"It is arguable that the determination does not provide sufficient reasons for the negative credibility findings, particularly where the preceding paragraphs cite country background material capable of supporting the claim."
4. The Appellant attended the hearing. I heard oral submissions from both representatives, following which I announced that I found the decision involved the making of a material error of law, and that my full reasons would follow.
Submissions
5. Mr. Lee relied on the grounds of appeal. He accepted, as set out in the grant of permission that, following the decision in Hossain and Others [2016] EWHC 1331, the ground of appeal relating to the Detained Asylum Casework process had fallen away.
6. He submitted that there were two reasons why the decision was unsustainable: the reasoning was circular and inadequate, and a material factor had been left out. He referred to the grounds, in particular paragraphs 4, 5, 7 and 8. In relation to the material factor which had been left out, he submitted that the Appellant's evidence was that he was a trafficking victim. According to Home Office guidance, and general common sense, the fact that someone claims to be a victim of trafficking should be taken into account.
7. In response Ms Isherwood relied on the Rule 24 response. She submitted that the Respondent had not accepted that the Appellant had been trafficked. In paragraph 47 of the decision the judge acknowledged this. In paragraph 53 the judge had gone through the Appellant's witness statement, and in paragraphs 89 and 90 had taken into account the expert evidence. Ms Isherwood referred to the significant differences in the accounts given by the Appellant at his screening interviews, in particular his name and date of birth. Paragraph 92 of the decision indicated that the judge was not ignoring the claim that the Appellant had been trafficked.
8. Ms Isherwood accepted that the findings were brief. However, with reference to paragraphs 92 to 95, she submitted that the claim itself had not been detailed. The judge had considered the evidence in paragraphs 89 and 90 when coming to the conclusion in paragraph 95. It was submitted that the Appellant's claim had changed to fit the changing situation in Vietnam.
9. In response Mr. Lee repeated his submission that the reasoning was inadequate.
Error of law
10. The "findings of fact and reasons" are set out from paragraphs 85 to 96 of the decision. However, despite the heading, not all of these paragraphs contain findings, but instead set out the Appellant's account and some of the background evidence. It is only paragraph 85, the finding of the Appellant's nationality and age, and paragraphs 92 to 95 which contain findings and reasons. The entirety of the judge's findings and reasoning are set out in five short paragraphs.
11. In paragraph 92 the judge states "I do not find the overall account of the Appellant to be plausible". He then sets out the differences in the accounts given by the Appellant in his two screening interviews (paragraphs 92 and 93). He does not set out the "overall account", or give reasons for finding that it is not plausible, but refers only to the screening interviews. In paragraph 94 he states:
"I do not accept the explanation provided by the Appellant that he had not disclosed the truth in his first screening interview as he had been told to act in that way by those he claimed to have trafficked him from Vietnam to the UK. I did not find the Appellant to be a credible witness."
12. This is the extent of the judge's findings as to the Appellant's credibility. There are no reasons given for why the explanation provided was not accepted. There is no reference made to the fact that he claims to have been trafficked, notwithstanding the fact that the Respondent did not accept that he had been trafficked. There is no more than a simple statement that the judge did not find the Appellant to be a credible witness because his explanation was not accepted. I find that the judge has failed to give adequate reasons for not accepting the explanation, and therefore for finding that the Appellant was not a credible witness.
13. In relation to the reliance on the screening interviews and the discrepancies between them, in addition to the fact that the judge had not given sufficient reasons for rejecting the explanation provided by the Appellant, I was referred to the case of JA Afghanistan [2014] EWCA Civ 450, set out in the grounds of appeal at paragraph 10. No consideration has been given to this case law by the judge when considering the discrepancies between the accounts given at the two screening interviews.
14. In paragraph 95 the judge states: "However, even if the Appellant had been detained as maintained and been involved in the demonstrations as claimed in Hanoi City, I do not find that the Vietnamese authorities would actively pursue the Appellant if he were returned to Vietnam." It was submitted by Ms Isherwood that the judge had taken into account the background evidence to which he referred at paragraphs 89 to 91 when coming to this conclusion. However, there is no reference to the background evidence in this paragraph. Having set out this background evidence, which states that participants in demonstrations are monitored by the police, the judge gives no reasons for finding that the Appellant would not be so monitored. There are no reasons given for the finding that he would not be pursued by the authorities.
15. I find that the judge has failed to give adequate reasons for his findings, which are very brief. I find that this failure to give adequate reasons on material matters amounts to a material error of law.
16. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision
17. The decision of the First-tier Tribunal involves the making of a material error of law and I set it aside. No findings are preserved.
18. The appeal is remitted to the First-tier Tribunal for rehearing.

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 27 October 2016

Deputy Upper Tribunal Judge Chamberlain