Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03516/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 10 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Sar
(ANONYMITY DIRECTION maintained)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Ahmed of Counsel instructed by Lincoln's Chambers
Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals against a decision of First-tier Tribunal Judge Wilson dismissing the Appellant's appeal against the Respondent's decision to refuse asylum and leave to remain based on his human rights and refusing to grant humanitarian protection, thereby challenging removal directions. The Appellant appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Osborne. The grant of permission states as follows:
"...
2. The grounds assert that the judge found the Appellant a credible witness. The Appellant explained both orally and in written evidence how he had been harassed and tortured in Bangladesh and would most likely be kidnapped or become a victim of enforced disappearance upon return. The judge failed to give appropriate weight to the Appellant's evidence. The judge erred in not giving due weight to the medical evidence of the Appellant's leg injury which resulted from a police attack. The judge erred in finding that the Appellant would face prosecution not persecution. The judge failed to apply the appropriate low standard of proof. The judge failed to consider Articles 2 and 3 ECHR. This amounts to a material error of law.
3. In a relatively concise and succinct decision and reasons it is nonetheless arguable that the judge failed to consider Articles 2 and 3 ECHR. It is also arguable that it is an error of law to have failed to consider Articles 2 and 3 to which reference is made in the Reasons for Refusal Letter and in the Appellant's grounds of appeal.
4. As this arguable error of law has been identified, all the issues raised in the grounds are arguable."
2. A Rule 24 reply was provided by the Respondent which was read by all parties before the hearing commenced.
Error of Law
3. At the close of submissions I indicated that I would reserve my decision which I shall now give. I find that there was an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.
4. In respect of the Appellant's first ground, Mr Ahmed for the Appellant argued that there was procedural unfairness in the consideration of the Appellant's documentary evidence as it was not considered by the Secretary of State. Mr Ahmed went to great pains to impress upon me how it was unfair that the Respondent refused to accept those documents when first submitted by the Appellant when he first claimed asylum. The Respondent also refused to accept those documents when conducting his substantive asylum interview, and also failed to give an address at which those documents could be submitted thereafter. In short, those documents did not receive any consideration from the Secretary of State before refusing the Appellant's asylum claim.
5. In respect of this issue, Mr Norton suggested that it would probably be a clerical error on the Secretary of State's part, however that cannot follow given that the Appellant had attempted to submit documents that support his claim on not one, but several occasions but did not receive a fair opportunity to do so.
6. This might have been a matter for concern, however Mr Ahmed tells me that the documents that the Respondent failed to consider were put before the First-tier Tribunal Judge and are contained at pages 32 to 177 of the Appellant's bundle. I will not go through all of that material piecemeal, but suffice to say that there is a large amount of it which includes letters from political party leaders (pages 36 to 43), newspaper articles (pages 44 to 77), amongst other material, including an FIR and charge sheet contained at pages 94 to 96 and page 136 onwards respectively. Therefore I must of course give consideration to the extent to which this material was considered by the First-tier Tribunal given that the Respondent failed to do so.
7. In the First-tier Tribunal's decision reference is made to the events which underlie the supporting documentation, such as the newspaper article and the FIR and charge sheet. However Mr Norton quite rightly highlighted that there were two errors of fact in the First-tier Tribunal's decision.
8. Firstly, at paragraph 2 of the decision, the First-tier Tribunal Judge was under the false impression that the Appellant was claiming asylum and persecution due to his involvement in demonstrations where he had been accused of killing three people, however that was not so, Mr Norton said, as the killings did not take place at the demonstrations but in a wholly separate event. Mr Norton said it was immaterial however as the judge had found that the Appellant was not charged with murder by the Police due to political reasons, but due to his being a politically active party member. I shall return to this in a moment.
9. Mr Norton also highlighted a second error at paragraph 17 of the First-tier Tribunal Judge's decision, namely that the allegation of murder and evidence to confirm the killings were in relation to a demonstration - which is why the BNP supporters viewed it as a politically motivated prosecution - whereas, as already discussed, the killings are said to have not taken place at that demonstration but at a separate time.
10. As an aside, I observe that the documentation and the facts underlying this claim are particularly complex and the presentation of the evidence would have benefitted from a detailed chronology setting out the Appellant's claim and the events in play against the objective and subjective material in the Appellant's bundle. Thus, I do sympathise with the First-tier Tribunal and can understand why there are factual errors in the decision, as this is something which normally would not occur had the appeal paperwork benefitted from better presentation by the Appellant and had the Respondent substantatively considered and analysed the material before she reached a decision which (had the decision resulted in a refusal) would have given rise to a comprehensive assessment of the facts underlying this claim in the refusal letter against the subjective evidence.
11. Returning to the assessment by the judge of this material Mr Norton, as I have already mentioned, stated that the judge found that the murder charges were not for political motivations, however that in my view is an unsafe finding because it is plain to me that the judge was not armed with a full set of facts and has thus not given due consideration to material such as the newspaper article. That article was published in what I am told is a national newspaper in Bangladesh (see page 49 of the Appellant's bundle) and reveals that in relation to a clash between the police and BNP leaders that occurred on 23 April 2012, the newspaper "Protom Alo" reports that at that time two people, including a leader of Jubodol were shot dead by police (I am told that Jubodol is the youth wing of the BNP). That newspaper report ties in with another item which does not find sufficient consideration in the First-tier Tribunal's determination, namely the FIR that appears at pages 96 to 98 which confirms that the Appellant was one of several persons who were encountered in possession of what is said to be "cut rifles, cut guns, axes and other deadly weapons" advancing towards police officers on that date in question. I note that the Appellant is named as the tenth accused person on the Charge Sheet at page 99 of the Appellant's bundle and is accused of the matters laid bare within the Charge Sheet and was therefore subject to the warrant of arrest seen at page 106 of the Appellant's bundle. Those matters, as their summary portrays, are clearly of importance and give context and nuance to the facts underlying the claim and also as to whether the arrest and charges against the Appellant would have been for political reasons or simply because he was an active party member (the former implying being that the charges are abusive and unfounded).
12. Aside from those omissions, I further find that the judge erred in failing to consider Articles 2 and 3 of the ECHR, particularly in terms of the potential breach that would occur if the Appellant were to return, given that the judge found that there was a risk of bail not being granted to the Appellant pending the hearing as he had failed to attend the Bangladesh court at the allotted time. Albeit that was something which the Appellant was ultimately responsible for, nonetheless, given that the judge was aware of the fact that the case had taken several years to approach the trial stage the detention without bail could arguably amount to several years. There is no satisfactory consideration of the violation of Article 3 for example by virtue of a prolonged detention over the course of the Appellant's potential trial.
13. Furthermore, I am satisfied that there is an error of law in respect of the focus turning upon the risk on return emanating from "prosecution" rather than "persecution". The Appellant's documentary evidence (as far as it was considered) was accepted, and the evidence of his supporting witness was also deemed to be credible and that evidence has not been given sufficient consideration in that it reveals that the risk will emanate by virtue of a "sham prosecution" as opposed to a legitimate one, which goes towards persecution by the state, rather than prosecution as a matter of the normal administration of justice.
14. Whilst the First-tier Tribunal has considered case law at paragraph 16 concerning the concept of risk emanating from a prosecution, such prosecutions would not of course normally amount to persecution, but that would only follow if the prosecution were a legitimate one, as opposed to an illegitimate one, which this arguably may be, which the First-tier Tribunal Judge has found against without being apprised of the full facts or the documentation underlying the claim.
15. Thus, given the evidence of the arguably illegitimate prosecution and the findings that political activists are targeted, and given that there is clear evidence of extra-judicial criminal activity by the police, and in light of the Appellant's claim and the Appellant being credible, I do find that the judge erred for all the reasons I have given and focused unfortunately upon the fairness of the trial rather than the events underlying the prosecution.
16. In light of the above findings I set aside the decision and findings of the First-tier Tribunal entirely.
Notice of Decision
17. The appeal to the Upper Tribunal is allowed. The previous determination involved the making of an error on a point of law and is set aside.
18. The appeal is to be remitted to the First-tier Tribunal to be considered by a differently constituted bench.
19. I maintain the anonymity direction of the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Saini