PA/03359/2016

• Status of case: Unreported
• Hearing date: 6 Apr 2017
• Promulgation date: 28 Apr 2017
• Publication date: 28 Jun 2022
• Last updated on: 28 Jun 2022

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: PA/03359/2016


THE IMMIGRATION ACTS


Heard at North Shields
Decision & Reasons Promulgated
On 6 April 2017
On 28 April 2017
Prepared on 6 April 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES


Between

A. A.
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Boyle, Solicitor, Halliday Reeves Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer


DECISION AND REASONS

1. The Appellant says that he is a citizen of Iran, although the Respondent disputed that claim having interviewed him. He entered the UK illegally on 21 November 2015 and made an application for protection when apprehended in the course of doing so.
2. The Respondent refused that application on 17 March 2016, and the Appellant’s appeal to the First tier Tribunal [“FtT”] against that decision was heard on 10 October 2016. It was allowed on asylum and Article 3 grounds, in a decision promulgated on 2 December 2016 by First Tier Tribunal Judge Head-Rapson.
3. The Respondent was granted permission to appeal that decision on 6 February 2017 by First tier Tribunal Judge Hodgkinson on the basis that it was arguable the Judge had either failed to deal with the issue of disputed nationality at all, or, had failed to give adequate reasons for her acceptance of the Appellant’s claim.
4. The Appellant has filed no Rule 24 Notice in relation to the grant of permission. Neither party has made formal application to adduce further evidence. Thus the matter comes before me.

Error of Law?
5. In the reasons given for the refusal of the Appellant’s claim the Respondent disputed his claim to be a citizen of Iran given the answers he had given at interview. Mr Boyle accepts that the dispute over the issue of his nationality was not conceded by the Respondent in the course of the hearing. Thus it was an issue that fell to the Judge to resolve, because the Appellant’s claim to be at risk of harm in the event of return to Iran would be bound to fail if he was not in truth a citizen of that country.
6. It is plain that although the decision notes the existence of the disputed issue at paragraph 14(i), it does not engage with the Respondent’s reasons for disputing that element of the Appellant’s case, and does not engage with, or indeed refer to, any of the evidence that was material to that disputed issue. Although there are two sentences that fall under the heading “Findings of Fact” in which the Appellant is referred to as a citizen of Iran [21 & 23] there is no explanation for how or why such a finding was arrived at, if indeed these sentences were intended by the Judge to be a finding of fact, which must be doubtful in the circumstances. Thus the Respondent’s case that, at best, the decision contains a bald acceptance of the core issue in dispute without reasons, and at worst that the decision simply fails to engage with the disputed issue, is made out.
7. In the circumstances the decision discloses a material error of law that renders the dismissal of the appeal unsafe, and the decision must in the circumstances be set aside and remade. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, or whether to proceed to remake it in the Upper Tribunal. 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 is set aside, and the appeal is remitted to the First Tier Tribunal for rehearing. The appeal is not to be listed before Judge Head-Rapson.
ii) A Kurdish Sorani interpreter is required for the hearing of the appeal.
iii) There is anticipated to be the Appellant and one further witness, and the time estimate is as a result, 3 hours.
iv) It is not anticipated by the Respondent that she has any further evidence to be filed. The Appellant anticipates that a review of the evidence is required and that a short further witness statement may be filed. The Appellant is therefore to file and serve any further evidence to be relied upon at his appeal by 5pm 24 April 2017
v) The appeal may be listed at short notice as a filler on the first available date at the North Shields hearing centre after 25 April 2017 for final hearing, but given the location of the Appellant’s witness it shall only be listed after consultation with the Appellant’s solicitors.
vi) No further Directions hearing is presently anticipated to be necessary. Should either party anticipate this position will change, they must inform the Tribunal immediately, providing full details of what (if any) further evidence they seek to rely upon.
vii) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Decision

8. The decision promulgated on 2 December 2016 did involve the making of an error of law sufficient to require the decision to be set aside and reheard. Accordingly the appeal is remitted to the First Tier Tribunal with the directions set out above.


Deputy Judge of the Upper Tribunal JM Holmes

Dated 6 April 2017