Tribunal decisions

The decision

IAC-AH-DP-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03747/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 2nd February 2017
On 13th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr m m n
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Chowdhury, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Afghanistan born on 1st May 1978. The Appellant entered the UK on 12th October 2015 and claimed asylum upon arrival. The Appellant's claim for asylum was based upon a fear that if returned to Afghanistan he would face mistreatment firstly because his father was a member of the People's Democratic Republic of Afghanistan and later joined the Taliban and secondly because militia groups hold hatred against his father as the Mujahedeen believe that the Appellant and his father are atheists. The Appellant's application for asylum was refused by Notice of Refusal dated 3rd March 2016. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Sullivan sitting at Hatton Cross on 27th September 2016. In a decision and reasons promulgated on 17th October 2016 the Appellant's appeal was dismissed on all grounds.
2. The Appellant lodged Grounds of Appeal to the Upper Tribunal. Those grounds contended:
(i) that the First-tier Tribunal Judge erred in her approach to the Appellant's age as a matter of law;
(ii) failed to make findings on the Appellant's father's death and failed to properly consider the Appellant's brother's death;
(iii) made an unlawful assessment of risk on return in particular with regard to failure to properly take into account previous determinations; and
(iv) made an unlawful assessment of risk on return by failing to properly consider an expert's report.
3. On 10th November 2016 First-tier Tribunal Judge Saffer granted permission to appeal. Judge Saffer noted that this was plainly a difficult case and was satisfied for the reasons given in the application that it was arguable that the judge made a material error of law regarding the risk as a family member of a family that had accepted risks from various factions in Afghanistan and regarding the assessment of his age.
4. On 5th December 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24.
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 Counsel Ms Chowdhury. The Secretary of State appears by her Home Office Presenting Officer Mr McVeety.
6. I am considerably assisted in this matter by the approach adopted by Mr McVeety on behalf of the Secretary of State. Mr McVeety acknowledges that in line with Ground 2 of the Grounds of Appeal it is incumbent upon the Immigration Judge to make findings on the core part of the Appellant's account. He acknowledges that it is not necessary for a judge to consider every fact but he agrees that the central points of an Appellant's appeal must be given due consideration by the judge. He accepts that the First-tier Tribunal Judge fails to make any findings on the Appellant's father and in particular on whether or not he was abducted/killed in 2015 and if so, by whom. He acknowledges that the question of whether or not the Appellant's father was in fact killed as recently as last year is materially relevant to the risk on return and that the First-tier Tribunal Judge has failed to deal with this at all.
7. In such circumstances he accepts that there are material errors of law which make the decision unsafe. Such concession effectively does Ms Chowdhury's job for her. He indicates that the Secretary of State agrees that the decision should be set aside with none of the findings of fact to stand and the matter remitted to the First-tier Tribunal for re-hearing.
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. As indicated above Mr McVeety has on Ms Chowdhury's behalf done her job for her. He is correct in his assessment. The only reference I can find relating to any suggestion made by the Appellant in his witness evidence that his father was abducted/killed in 2015 is to be found at paragraph 46 which simply records what the Appellant's father did in the run up to his death. It is clear that this and the approach to the death of the Appellant's older brother in 2001 have not been properly addressed by the First-tier Tribunal Judge. In such circumstances it is not necessary within this decision to address the other Grounds of Appeal. There are clearly material errors of law in the decision of the First-tier Tribunal Judge and I set it aside and remit it to the First-tier Tribunal for re-hearing and give appropriate directions.
Decision

The decision of the First-tier Tribunal Judge contains material errors of law and is set aside. Directions are given for the re-hearing of this matter as below:-

(1) That on the finding that there are material errors of law in the decision of the First-tier Tribunal Judge and the decision of the judge being set aside the matter is remitted to the First-tier Tribunal to be heard at such centre that the administration considers appropriate. (It is recorded herein that the last known address of the Appellant is in Wrexham, North Wales, but that his instructed solicitors are based in London, his instructed Counsel in Manchester and that the hearing before the First-tier Tribunal took place at Hatton Cross and the hearing before the Upper Tribunal took place in Manchester).
(2) That none of the findings of fact are to stand.
(3) That the hearing be before any Immigration Judge other than Immigration Judge Sullivan with an ELH of 3 hours.
(4) That there be leave to either party to file/serve such additional evidence be it subjective and/or objective upon which they seek to rely at least fourteen days prior to the restored hearing.
(5) That an Afghan Dari interpreter do attend the remitted hearing.

Anonymity

The First-tier Tribunal Judge granted the Appellant anonymity pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) Immigration and Asylum Chamber) Rules 2014. No application is made to vary that order and the order is continued.

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