Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03465/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 20 March 2017
On 23 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
ABDULLAH ABDUJALILL ALI ABDULLAH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Faryl on behalf of PHRPL
For the Respondent: Ms Abomi Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on 7 May 1991 and claims that he is a national of Sudan, a non Arab Darfuri from the Bergo tribe.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Heynes after a hearing on 18 August 2016 which dismissed the Appellant’s appeal against the decision of the Respondent dated 23 November 2016 to dismiss the Appellants protection claim.
5. The refusal letter gave a number of reasons:
(a) It was accepted that the Appellant came from Sudan but not that he was a non Arab Darfuri.
(b) It was not accepted that the Appellant was a member of the Bergo tribe because of his lack of knowledge about the tribe and its customs.
(c) It was not accepted that he Appellant was arrested because of his brothers suspected political activities because of the discrepancies in relation to this aspect of his claim.
(d) The Appellant failed to claim asylum in a safe country, France, on route to the UK.

The Judge’s Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Heynes (“the Judge”) dismissed the appeal against the Respondent’s decision.
7. Grounds of appeal were lodged arguing that the Judges decision was based on a finding that he had not established that he spoke the language of the Bergo Tribe namely Rotana when the Respondent had not referred to this in the refusal letter; neither the Appellant nor his witnesses were given the opportunity to address the Judge on the issue of their shared language as it was not raised by the Judge or the Home Office Presenting Officer; the Judge made a factual error in asserting that the only witness who knew the Appellant in Sudan had not attended whereas he had heard evidence from a Mustafa Mohmood who knew him in Sudan and was a distant relative by marriage
8. On 11 October 2016 First tier Tribunal Judge Page gave permission to appeal.
9. At the hearing Ms Abomi conceded that the errors of law argued in the grounds were made out.

Finding on Material Error
10. Having heard those submissions I reached the conclusion that the Tribunal made material errors of law.
11. There was procedural unfairness in taking issue with the Appellants claim to be a non Arab Darfuri by reason of the language he spoke when this was not a matter raised either in the refusal letter or by the Judge or the Home Office Presenting Officer at the hearing. The Appellant and his representative should have been given the opportunity to address this issue.
12. I am also satisfied that the Judge made a material error of fact in asserting that no witness gave evidence before him who had known the Appellant in Sudan when Mr Mahmoods evidence confirmed that he did know the Appellant in Sudan and was related to him.
13. These errors I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
14. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
15. In this case I have determined that the case should be remitted as I have found there was an error of law because the Appellant did not have a fair hearing due to flawed approach to the central issue in the case, the Appellants ethnicity. In this case none of the findings of fact are to stand and the matter will be a complete re hearing.

Conclusion
16. I therefore found that errors of law have been established and that the Judge’s determination cannot stand and must be set aside in its entirety
17. I consequently remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on a date to be fixed, before me.
18. I made the following directions for the resumed hearing
A North African Arabic interpreter.
List for 3 hours.

Signed Date 20.3.2017
Deputy Upper Tribunal Judge Birrell