Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03113/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 March 2019
On 20 March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

a a n m
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Moriarty, Counsel instructed by Dylan Conrad Kreolle Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Zambia born on 13 August 1962 who appealed to the First-tier Tribunal against the decision of the respondent dated 30 January 2018 to refuse her Protection claim. In a decision promulgated on 30 August 2018, First-tier Tribunal Judge Shore dismissed the appellant's appeal on all grounds. The appellant appeals with permission on the grounds that the Tribunal erred in:
(i) Ground 1 - not accepting the documents submitted by the appellant in support of her claim to be at risk of persecution for reason of being a trafficked woman.
(ii) Ground 2 - not finding the appellant to be at real risk of serious harm or that there would be a breach of the protected rights under Articles 2, 3 or 8 on return to Zimbabwe.
Error of Law Discussion
2. Expanding on the grounds Mr Moriarty submitted that the judge had failed to make properly reasoned findings in relation to whether or not the appellant is a victim of trafficking and although the reasons for refusal referred to a National Referral Mechanism decision, dated 6 February 2017, concluding that the appellant was not a victim of trafficking, there was no copy of that decision provided by the respondent or indeed considered by the Tribunal. It was further submitted that it was unclear from the judge's reasoning why the appellant's oral evidence was rejected.
3. In addition, although the respondent's Rule 24 response relied on the Court of Appeal in MS (Pakistan) [2018] EWCA Civ 594 (in summary, unless the appellant can show that the trafficking decision was irrational or perverse a statutory appeal could not be used to indirectly challenge those findings) as I identified at the hearing the Upper Tribunal in ES (s.82 NIAA 2002 negative NRM) Albania [2018] UKUT 00335 confirmed that a previous decision made by the Competent Authority is not of primary relevance in the determination of an asylum appeal. Mr Moriarty also relied on what was said by the Court of Appeal in MN [2018] EWHC 3268 including in relation to the importance of the lower standard of proof in protection claims whereas the competent authority is the balance of probabilities. The Court of Appeal, at paragraph 60, did not accept that the court in MS (Pakistan) was intending to make a change to the function of the Tribunal in asylum/Article 3 cases, nor did MS (Pakistan) change the standard of proof in those cases.
4. The judge, at [29], noted the submissions that the appellant was not a victim of trafficking as per the referral mechanism decision. However the judge in his findings failed to give any specific consideration to this issue or give adequate reasons as to why he rejected the appellant's claim to be trafficked; the judge appears therefore to have taken the decision of the competent authority at face value.
5. In relation to ground 1 and the criticism of the judge's treatment of documents Mr Moriarty referred to the documents the appellant provided in support of her claim that she was trafficked and specifically the detailed document from Ashiana Sheffield (a trafficking project) dated 28 June 2016 which purported to provide additional information in relation to the appellant's claim to have been trafficked which the judge failed to appear to fail to consider and did not give any adequate reasons as to why it was rejected, if that was the case.
6. In addition, at [44], the judge dismissed the appellant's oral and written evidence but failed to give any reasons as to why this was the case. At [48] the judge drew an adverse inference against the appellant for failing to provide any evidence from the woman in Ireland who had assisted her. However, at [23] of the decision and reasons, it was recorded that the appellant stated that she had lost touch with the woman who helped in her Ireland and she did not know if she was in Ireland or in Nigeria. Again, it is unclear whether or not the judge rejected this explanation as it is not addressed.
7. Although the judge, at [43], stated that the appellant's evidence at interview was 'contradictory and internally inconsistent' the judge failed to provide any examples as to why this was the case.
8. It was not argued that the respondent was required to authenticate documents. However, although the judge had directed himself as to Tanveer Ahmed he failed to apply that holistic approach but instead had rejected the evidence because he felt that the documents did not "look genuine to me" ([45]). I agree with Mr Moriarty that this was the wrong approach.
9. In addition the judge, at [47], gave little weight to the letter produced from the appellant's son as he had not attended the hearing, whereas it was not specifically in dispute that the appellant's son was resident in Zambia.
10. Mr Walker, for the respondent, conceded that there was considerable force in the appellant's arguments including specifically the failure to take into consideration the appellant's account of why she did not have any more information from the woman who assisted her in Ireland and also in relation to what was said at [47] in relation to the non-attendance of her son. Mr Walker noted that the main credibility finding was at [42] and it was his submission that this was insufficient and amounted to a material error of law as the judge ought to have taken into account and considered, for himself, applying the lower standard of proof, the appellant's claim to have been trafficked. Mr Walker submitted that the judge did not appear to have done so. Mr Walker further submitted that the cumulative errors, including the error in relation to the non-attendance of her son, given that he was in Zambia, and the error in relation to the appellant having given an explanation as to why there was no information from the woman who assisted her in Ireland, were sufficient to mean that the decision could not stand.
11. I was grateful for the assistance of both representatives. For the reasons discussed, the decision of the First-tier Tribunal contains errors of law such that it falls to be set aside. Given the nature and extent of the fact-finding required I remit the appeal to the First-tier Tribunal, Taylor House to be considered de novo, other than by Judge Shore.

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: 19 March 2019

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or payable. No fee award is made.

Signed Date: 19 March 2019

Deputy Upper Tribunal Judge Hutchinson