Tribunal decisions

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: PA/03115/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 21 November 2016
On 22 November 2016
Prepared on 21 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

R. S.
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr McCormick, Counsel, instructed by Halliday Reeves Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. The Respondent accepts that the Appellant is a citizen of Eritrea who entered the UK illegally. She made an application for protection in December 2015. This was not made on the basis that she would be perceived as a deserter or draft evader, because her case was that she had undertaken a period of military service but was then discharged because she became exempt from further service upon marriage. Instead her case was that she was a Pentecostal Christian who faced a real risk of persecution as such from the authorities, and had left Eritrea illegally as a result. That application was refused on 15 March 2016.
2. The Appellant's appeal against that decision was heard on 8 August 2016, and it was dismissed on all grounds, in a decision promulgated on 16 August 2016 by First Tier Tribunal Judge Fox.
3. The Appellant was granted permission to appeal that decision on 5 September 2016 by First Tier Tribunal Judge Lambert on the basis it was arguable the Judge's approach to the hearing had meant that there had not been a fair hearing of the appeal.
4. Thus the matter comes before me.
Error of Law?
5. Both parties were agreed before me that the decision contains errors as to the hearing with which the Judge was engaged. Thus, although there was no attendance at the hearing on behalf of the Respondent, and thus no cross-examination of the Appellant, the decision suggests that the Respondent was present and made oral submissions opposing the appeal [9]. Moreover the decision under appeal is incorrectly identified by date [9]. If they stood alone, those errors could perhaps be taken as being without substance, or as immaterial. However the decision also records that Mr McCormick made submissions in support of the Appellant's case [3], when he did not. Mr McCormick made no submissions in support of the Appellant's case because once it was identified that the Respondent would be un-represented, and that there would be no cross-examination, the Judge informed him that his assistance was "not needed". The Judge himself asked no questions of the Appellant.
6. Thus Mr McCormick was faced with a situation in which his client's evidence was not tested by any cross-examination on behalf of the Respondent, or, by any questions from the Tribunal. Whilst the failure to attend the hearing did not of course mean that the Respondent had formally conceded that the Appellant's account of events was truthful, in the face of such a comment from the Tribunal, the Respondent accepts before me that Counsel is entitled to infer that the appeal is to be allowed. That would be the only circumstance in which the Tribunal could decline to hear anything from the party's representative. I agree. Whilst the decision was reserved in the usual way so that it might be written up, Mr McCormick was entitled to interpret that comment from the Judge as a formal indication that the appeal was to be allowed.
7. It follows that both parties are agreed that the Appellant did not receive a fair hearing of her appeal, and that the decision is unsafe and cannot be maintained. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, as requested by both parties. In the circumstances of the appeal I am satisfied that this is the correct approach. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Fox.
ii) A Tigrinyan interpreter is required for the hearing of the appeal.
iii) There are anticipated to be only one witness, and the time estimate is as a result, 3 hours.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 30 November 2016 for full hearing. No further Directions hearing is presently anticipated to be necessary. Should the Appellant anticipate this position will change, she must inform the Tribunal immediately, providing full details of what (if any) further evidence she seeks to rely upon.
v) The Anonymity Direction previously made by the First Tier Tribunal is preserved.
Decision
8. The decision promulgated on 16 August 2016 did involve the making of an error of law sufficient to require it to be set aside and the appeal to be reheard. Accordingly the decision upon the appeal is set aside and the appeal is remitted to the First Tier Tribunal with the following directions;
i) The decision upon the appeal is set aside. The appeal is remitted to the First Tier Tribunal for rehearing. No findings of fact are preserved. The appeal is not to be listed before Judge Fox.
ii) A Tigrinyan interpreter is required for the hearing of the appeal.
iii) There are anticipated to be only one witness, and the time estimate is as a result, 3 hours.
iv) The appeal is to be listed on the first available date at the North Shields hearing centre after 30 November 2016 for full hearing. No further Directions hearing is presently anticipated to be necessary. Should the Appellant anticipate this position will change, she must inform the Tribunal immediately, providing full details of what (if any) further evidence she seeks to rely upon.
v) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Deputy Judge of the Upper Tribunal JM Holmes
Dated 21 November 2016