Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03264/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 13th January 2017
On 1st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr Faozi [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain, Solicitor
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Libya born on 23rd July 1981. The Appellant has an extensive immigration history dating back to having first been granted a student visa on 13th March 2005 which was subsequently extended on several occasions until 30th January 2010. On 1st November 2009 however the Appellant returned to Libya but re-applied in April 2014 for a further student visa which was refused. A renewed application was granted from 7th July 2014 until 7th June 2015. The Appellant does not appear to have taken the benefit of that visa insofar as he only arrived in the UK on 2nd June 2015 i.e. some five days before his visa was due to expire. He claimed asylum upon arrival.
2. The Appellant claimed asylum based on a fear that if returned to Libya he would face mistreatment due to his imputed political opinion and race as perceived as a Gaddafi supporter and belonging to the Amazigh Tribe. That application was refused by Notice of Refusal dated 2nd November 2015. The Appellant appeals and the appeal came before Judge of the First-tier Tribunal Paul sitting at Manchester on 12th August 2016. In a decision and reasons promulgated on 25th August 2016 the Appellant's appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
3. On 8th September 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 21st September 2016 First-tier Tribunal Judge Astle granted permission to appeal. Judge Astle noted that the grounds argued that in assessing the risk under Article 15(c) of the Qualification Directive the judge relied solely on a report prepared by the Respondent and failed to engage with other significant evidence and applied an incorrect test. Judge Astle noted that although the judge says at paragraph 52 that she had had regard to the evidence submitted, it was arguable that she failed to give adequate reasons for preferring the report submitted by the Respondent over the various reports submitted on behalf of the Appellant.
4. On 29th September 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. That Rule 24 response is important. It states
"The Respondent does not oppose the Appellant's application for permission to appeal on the basis of FA (Libya: Art 15(c)) Libya (CG) [2016] UKUT 413, as it is accepted that the previous country guidance has been replaced which was followed by the First-tier Tribunal Judge at paragraph 52. The Respondent invites the Tribunal to remit the matter back to the First-tier Tribunal to be re-determined solely on the ground relating to Article 15(c)."
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor Mr Hussain. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
Submission/Discussions
6. It is the agreed position of both Mr Hussain and Mr McVeety that the judge was guided by out of date country guidance authority and therefore the decision cannot stand. Mr Hussain agrees that the credibility findings made by the judge should be preserved and that the issue should solely relate to consideration of the failure to address the appeal in the light of country guidance pursuant to Article 15(c).
7. I raised with the legal representatives that as there was agreement that the First-tier Tribunal Judge's findings on credibility were to be preserved the question as to whether or not it would be better for the matter to be retained by me within the Upper Tribunal. There was in this instant consent and argument put to me which persuades me that it is appropriate in slightly unusual circumstances whilst preserving the credibility findings to remit the appeal back to the First-tier Tribunal to be reconsidered on the outstanding issue. The parties further agreed that it could not be dealt with by way of submission only on the basis that it would be almost certainly necessary for an additional witness statement to be prepared by the Appellant and for oral testimony and cross-examination to take place.
The Law
8. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
9. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
10. I am persuaded by the joint submissions of the legal representatives in this matter and by the concession made by the Secretary of State in the Rule 24 response that for reasons given in the Rule 24 response there is a material error of law in the decision of the First-tier Tribunal Judge and I consequently remit the matter back to the First-tier Tribunal for re-hearing in accordance with the directions set out below.
Decision and Directions
11. The decision of the First-tier Tribunal Judge contains a material error of law and is set aside. Directions are given below for the re-hearing of this matter:-
(1) It being found that there is a material error of law in the decision of the First-tier Tribunal Judge insofar as the judge failed to give due consideration to the current country guidance authority of FA (Libya: Art 15(c)) Libya (CG) [2016] UKUT 413 the decision of the First-tier Tribunal is set aside and is remitted to the First-tier for re-hearing.
(2) That the First-tier Tribunal Judge's findings on credibility are preserved.
(3) That the only issue outstanding before the First-tier Tribunal on the re-hearing of this matter is the extent to which current country guidance when applied to the Appellant's circumstances would or would not lead to the Appellant being able to sustain his claim.
(4) It is further agreed that the appeal be limited to the Appellant's claim pursuant to Article 15(c) of the Qualification Directive.
(5) That the appeal be relisted before the First-tier Tribunal on the first available date 28 days hence with an ELH of three hours.
(6) That the appeal be before any First-tier Tribunal Judge other than Immigration Judge Paul.
(7) That there be leave to either party to file and serve both subjective and objective evidence upon which they seek to rely including additional witness statements and any skeleton arguments at least seven days prior to the restored hearing.
(8) That an Arabic interpreter (with North African dialect) do attend the restored hearing.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris