Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03238/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 3 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MSAMS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEARTMENT
Respondent

Representation:
For the Appellant: Mr M Shilliday, Counsel instructed by DJ Webb & Co Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a citizen of Egypt born on 30 November 1992 and appealed to the First-tier Tribunal against a decision of the respondent dated 23 March 2016 to refuse to grant him asylum /humanitarian protection. In a decision promulgated on 12 October 2016 Judge of the First-tier Tribunal O'Garro dismissed the appellant's appeal on all grounds.
2. The appellant appealed and permission was granted on the grounds that the judge at [48] of the decision and reasons stated that she had not been provided with a "copy of the judgment of the court itself". However, as identified by the permission judge, this document was provided by the appellant to the respondent and is at L1 of the appellant's bundle. The permission to appeal identified that this was a central issue in the assessment of the appellant's case and his credibility and therefore it is arguable that the judge's assessment of the case was flawed.
Error of Law
3. Mr Whitwell did not concede this ground although he did accept that there was indeed a document at L1 and L2 of the appellant's bundle, L1 being the translation and L2 being a copy of the original document. In the Rule 24 response the respondent asserted that it was not entirely clear what the First-tier Tribunal Judge had meant when she said that the judgment of the court had not been provided. Although it was accepted that there was a document at L1 which recited the sentence bestowed upon the appellant headed "General Prosecution Certificate" and referred to as a "Certificate Confirming Prison Sentence" in the PF1 bundle, the document, in the respondent's assertion, did not appear to be signed or to identify a member of the judiciary and it was submitted that this is perhaps what the First-tier Tribunal Judge meant when she stated at [48] that "the court's judgment has not been provided by the appellant and I find that it has not been provided because it does not exist".
4. Mr Whitwell quite properly acknowledged that he was in some difficulties in defending this position, not least because the Arabic document clearly shows a signature and the judge stated that the document did not exist rather than stating that she did not accept that the document at L1 and L2 purported to be that document. Indeed the judge went on to criticise other documents provided by the appellant, including a document referring to his court appearance in 2014 which is found at K1 and K2 of the bundle and appears to be in a similar format to the court document at L1 and L2.
5. Although Mr Whitwell indicated that the judge, including at [32] of her decision and reasons, considered everything in the round and was clearly not satisfied that this appellant was credible, in my view the respondent is unable in this case to simply rely on the judge's overall credibility findings. The judge specifically cited the lack of a court judgment document as integral, and arguably central, to that credibility assessment. It cannot be said, even given the judge's criticisms of the appellant's credibility, that had she considered the document and translation at L1 and L2 she would have nonetheless inevitably rejected the appellant's credibility.
6. I am therefore satisfied that the Judge of the First-tier Tribunal made a material error of fact of such significance that it constitutes an error of law in finding that there was no copy of the judgment before the Tribunal. However, I reject Mr Shilliday's submission, which was misconceived, that this was an issue of procedural unfairness. Neither am I with him on his grounds in relation to the general claimed procedural unfairness in the judge considering credibility when the Presenting Officer made no submissions nor cross-examined on that issue. The issue of credibility was addressed at length in the Reasons for Refusal Letter of the respondent dated 22 March 2016. It was not suggested by Mr Shilliday that the Presenting Officer had made any concession in relation to credibility. In light of this it was open to the judge to proceed to consider that credibility was an issue.
7. However, as I have found that the mistake of the judge at [48] of her decision undermines her credibility assessment that is sufficient for the decision of the First-tier Tribunal to be set aside in its entirety. No findings are preserved.
8. Under Section 12(2)(b)(i) of the Tribunals, courts and enforcement Act 2007 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 to be heard by any judge other than Judge O'Garro.

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: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid and no fee award is therefore applicable or appropriate.

Signed Date: 30 December 2016

Deputy Upper Tribunal Judge Hutchinson