Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02626/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 11 November 2016
on 14 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

M B [A]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Devlin, Advocate, instructed by McGlashan MacKay, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant identifies himself as a citizen of Eritrea, born on 20 July 1985. He says that if he returned there he would be at risk as a Pentecostalist, and for having left illegally.
2. The respondent rejected his claim by letter dated 30 October 2015, accepting that he is a Pentecostalist, but rejecting his account of habitual residence in Eritrea, and holding that in any event by his own account he would be a national of Ethiopia, having been born in that country to Ethiopian parents, and not having provided evidence that he has been deprived of or would no longer be entitled to his nationality.
3. First-tier Tribunal Judge Agnew dismissed the appellant's appeal by decision promulgated on 11 July 2016.
4. Permission to appeal to the UT was granted on an application which sets out 7 grounds (paragraphs 2 - 7 of the 9 paragraphs of the application). In view of concessions made by the respondent at the hearing, the grounds may be dealt with briefly.
5. Paragraph 2 argues that the judge had no good reason for holding that the claimed financial assistance given to the appellant by his aunt for his exit from Eritrea did not sit well with her unwillingness to support his education. Paragraph 3 says there was no basis for an adverse inference from failure to mention at an earlier stage additional reasons for non-attendance at school.
6. The appellant was interviewed on 19 October 2015. His previous solicitors prepared a letter dated 23 October 2015 (prior to receipt of the refusal letter and so without knowledge of the respondent's case) seeking to correct certain errors "in the recording of some of the answers". This letter was not included among the documents provided by either side to the FtT. The grounds at paragraphs 4 and 8 are based on the judge not having before that letter before her, and so being misled into discounting the appellant's explanations that he had named a place near Assab (his claimed place of former residence in Eritrea), and that he was permitted to re-enter Sudan on return from Greece because he paid a bribe.
7. The appellant's current solicitors had a copy of the letter and could have provided it to the judge, but the Presenting Officer, very fairly, was prepared to let that point pass. There were thus two issues on which the Judge, through no fault of her own, might have fallen into error and which played some part in the outcome.
8. Paragraph 5 submits that the judge made too much of the appellant booking a trip by bus to visit the Ethiopian Embassy in London which involved an unnecessary overnight stay.
9. Paragraph 6 says that the judge had no basis for finding that the appellant and his witness Mr [H] might not have recognised each other again after many years, and that there was no good reason why they must have been familiar with each other's family situation, if circumstances were as they claimed. Paragraph 7 is directed against the judge's findings that the evidence from the appellant and from Mr [H] contained crucial discrepancies, when no such discrepancies are identified.
10. Mrs O'Brien said that it might have been possible to analyse and compare the evidence from the appellant and from Mr [H] to show why it lacked credit, but she conceded, again fairly and correctly, that such analysis is missing from the decision.
11. Mr Devlin acknowledged that this was a case where none of the errors identified might be sufficient on its own to undermine the decision. Some of the grounds are relatively weak. However, the matters arising from the unfortunate absence in the FtT of the letter dated 23 October 2015 (a copy of which was attached to the grounds of appeal, so that it is now on file) and from the treatment of the evidence of the witness Mr [H] are of such force that the decision cannot safely stand.
12. The decision of the First-tier Tribunal is set aside for error on points of law as summarised above, and as conceded. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
13. The member(s) of the FtT chosen to consider the case or not to include Judge Agnew.
14. An anonymity direction was made in the FtT, although for no apparent reason. No such direction was sought in the UT, so this decision has not been anonymised.

11 November 2016
Upper Tribunal Judge Macleman