Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02599/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st September 2016
On 4th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

s a r
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Parmar, Counsel for Kanaga Solicitors, London
For the Respondent: Mr Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant was born on 12th June 1967 and is a citizen of Pakistan. She appealed against the decision of the Respondent dated 26th October 2015 refusing her asylum application and her humanitarian protection claim. Her appeal was heard by Judge of the First-tier Tribunal Pears on 7th July 2016 and dismissed on asylum grounds, humanitarian protection grounds and human rights grounds in a decision promulgated on 18th July 2016.
2. An application for permission to appeal was made on behalf of the Appellant. This states that the Appellant may have been denied a fair hearing due to the fact that the judge did not adjourn the case to enable the Appellant to rebut the Respondent's assertion that the FIRs produced by the Appellant were not authentic. The verification reports on the FIRs were served by the Respondent five days before the hearing. At paragraph 87 the judge states "on the basis of the evidence before me I find that the two FIRs and the relevant letters from and to Kashif Hanif Associates are not documents that can be relied on but I do not need to go further given my view of the case and do not do so." The permission states that this finding goes to the heart of the judge's findings on sufficiency of protection. It states that it is arguable that the Appellant was placed at a disadvantage by the production by the Respondent of evidence five days before the hearing to show that the FIRs were not authentic and the refusal of the adjournment to obtain evidence and a rebuttal from a lawyer in Pakistan resulted in unfairness.
3. There is a Rule 24 response on file which states that the Respondent made strenuous and repeated efforts to verify the evidence relied on by the Appellant in pursuit of her claim and the judge made clear findings that the reasons given in support of the application for an adjournment were peripheral to the issues before him (paragraph 80). The Rule 24 response states that the judge has weighed all the evidence in the round and concluded that certain aspects of the Appellant's evidence were credible whereas others were not. The response states that the grounds do not disclose a material error of law.
The Hearing
4. Before Counsel for the Appellant made his submissions the Presenting Officer submitted that the Respondent accepts that there is an error of law in the decision. He submitted that the judge has indicated that there was an adjournment request to enable the Appellant to rebut the Respondent's assertion that the FIRs were not authentic. At paragraph 80 of the decision a judge states that gaps or issues on which the Appellant's Counsel wanted further time to gain evidence were peripheral. The judge however goes on at paragraph 87 to state: "On the basis of the evidence before me, the two FIRs and the relevant letters from and to Kashif Hanif Associates are not documents that can be relied on but I do not need to go further given my view of the case and do not do so."
5. The Presenting Officer submitted that on that basis solely the judge has found that the Appellant's claim cannot be allowed. The Presenting Officer submitted that as the Appellant was given no chance to look into this and make responses, this amounts to a material error of law. The Presenting Officer submitted that the decision should be set aside and directions given for a de novo hearing before the First-tier Tribunal.
6. Counsel for the Appellant concurred and asked me to follow that course. He submitted that he is adopting all the grounds of application.
Decision
7. I find that there is a material error of law, for the reasons given by the Presenting Officer, in the judge's decision.
8. I set aside the decision of Judge Pears promulgated on 18th July 2016.
9. The findings of the First-tier Tribunal cannot stand. Under Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The members of the First-tier Tribunal chosen to reconsider the case are not to include Judge Pears.
10. Anonymity has been directed.

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 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.

Signed Date 4th October 2016

Deputy Upper Tribunal Judge I A M Murray