Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02730/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 January 2017
On 8 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

M S T
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Akinbolu, counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Afghanistan born on 9 July 1989. He arrived in the United Kingdom as a Tier 4 Student on 22 February 2014 with leave valid until 27 June 2015. He made an application for asylum on the basis that he feared persecution if returned to Afghanistan because his brother had worked as an interpreter with the US Armed Forces. The Respondent accepted that his brother had been an interpreter for the US Special Forces but refused his asylum claim in a decision dated 30 October 2015. The Appellant appealed against that decision and his appeal came before Judge of the First-tier Tribunal Adio for hearing on 15 March 2016. In a decision and reasons promulgated on 29 March 2016 the judge dismissed the appeal.
2. Permission to appeal was sought from the Upper Tribunal on 13 April 2016. The grounds provided as follows:
(i) the judge had materially erred in failing to accede to an application to adjourn the appeal in order to obtain evidence from an expert, Mr Zadeh, as to the authenticity of documents submitted by the Appellant. The documents in question were from the Crime Investigation Directorate of Kabul Province and also threatening letters from the Taliban;
(ii) the judge had failed to give anxious scrutiny to the evidence and the case as a whole, made errors of fact which were material in relation, for example, to the date of kidnapping of the Appellant's father and that he had erred in his assessment of letters from the police. I note these were the letters for which it was sought authentication by the expert. It was also asserted that the judge had assessed the evidence from the perspective of the United Kingdom, which was unreasonable;
(iii) the Judge had further erred in respect of his treatment and analysis of the expert evidence of Professor Giustozzi, that he had misinterpreted this evidence and that he had failed to determine a material issue which was the fact that the Appellant bears a striking resemblance to his brother, the brother in question being the brother who has now been granted asylum in the USA having worked as an interpreter for the Special Forces in Afghanistan.
3. Permission to appeal was refused by First-tier Tribunal Judge Robertson and upon renewal was refused by Upper Tribunal Judge Smith in a decision dated 2 June 2016. The Appellant's solicitors then brought a Cart judicial review of the decision refusing permission to appeal and in an Order dated 14 October 2016, the Honourable Mr Justice Collins granted permission to apply for judicial review stating as follows:
"I have just been persuaded that this is a rare case in which it would be appropriate to grant permission. The FTT's decision went against the claimant largely because he did not accept that his father had been kidnapped by or at the behest of the Taliban. The claimant was obviously a potential target as his brother had acted for the US Forces and in the circumstances there is, this being an asylum claim, an arguable compelling circumstance within the Cart test. I am also persuaded that the refusal of the adjournment was arguably wrong."
4. Following that decision there was an Order on 16 November quashing the decision of the Upper Tribunal to refuse permission to appeal and on 12 December 2016 the Vice President of the Upper Tribunal granted permission to appeal to the Upper Tribunal in light of the decision and Order of the High Court.
Hearing
5. At the hearing before me, having read the skeleton argument submitted by Ms Akinbolu on behalf of the Appellant dated 17 January 2017, and upon sight of the Order of Mr Justice Collins dated 14 October 2016, which he had not previously seen, Mr Armstrong agreed that the First-tier Tribunal Judge had erred materially in law and that the matter should be remitted back to the First-tier Tribunal for a hearing de novo. In light of Mr Armstrong's helpful concession, I find that the Judge erred materially in law and I remit the appeal to be heard de novo by a Judge of the First-tier Tribunal other than First-tier Tribunal Judge Adio.
6. I make the following directions:
6.1. A copy of the expert report of Dr Hassan Zadeh to be served upon the Home Office and the Tribunal;
6.2. The appeal is to be listed for three hours with a Dari interpreter and two witnesses.
6.3. Upon receipt of the report of Dr Zadeh and in light of Dr Giustozzi's expert evidence that family members of interpreters to the US Forces are at risk of persecution, the Respondent will communicate the outcome of her review of the underlying decision of 30 October 2015 to the First tier Tribunal at the earliest opportunity.

Signed: Rebecca Chapman Date: 6 February 2017

Deputy Upper Tribunal Judge Chapman

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: Rebecca Chapman Date: 6 February 2017

Deputy Upper Tribunal Judge Chapman