Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03858/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing
On 29 December 2016
On 28 November 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

S J
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Heidar, Solicitor of AA Immigration Lawyers
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Afghanistan who was born in May 1999. He applied for asylum in this country which application was refused and he appealed against that refusal. His appeal was heard before First-tier Tribunal Judge N M Paul sitting at Taylor House on 9 September 2016 and in a Decision and Reasons promulgated on 29 September 2016 Judge Paul dismissed the appeal.
2. The basis of the appeal is set out at paragraph 30 of his decision as follows:
"30. It is important to note that the appellant's brother was granted asylum on the basis of being a minor. The position in this case appears to be that the respondents have indicated that they would not seek to remove the appellant to Afghanistan until contact had been made with his family - or until he was to turn 18 on 10 May 2017. The reality is, therefore, that at the point at which he will face being returned to Afghanistan he would not be a minor. In my view, therefore, he does not fall to be considered as an unaccompanied minor who could be returned to Afghanistan forthwith. It follows, in my view therefore, that whilst the principles of LQ still stand, this is not a case in which he is at risk of persecution or having his humanitarian protection breached, because he will not be returned to Afghanistan as a minor."
3. This decision was made notwithstanding the submissions which had been made to him by Ms Heidar, who represented the appellant at the First-tier Tribunal as she does before this Tribunal today, that the time at which the risk has to be considered was at the date of the hearing. Mr Tarlow does not seek to suggest to the Tribunal that Ms Heidar's First-tier submission was wrong and indeed it is trite law that that was in fact the date at which the risk to the appellant should have been assessed. Mr Tarlow does not seek either to persuade the Tribunal that the decision of Judge Paul can be sustained for any other reason. It follows that the decision of the First-tier Tribunal in this case must be set aside for a material error of law, being the failure to consider the risk on return to the appellant as at the date of the hearing. In these circumstances, as there will have to be a complete rehearing at which the risk to him as at the date of the hearing will have to be determined it is appropriate to remit the appeal back to the First-tier Tribunal sitting at Taylor House for a hearing before any judge other than First-tier Tribunal Judge Paul and I will so order.
Decision
The decision of First-tier Tribunal Judge Paul, dismissing the appellant's appeal is set aside and the appeal is remitted back for rehearing at Taylor House by any judge other then Judge Paul.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed:

Upper Tribunal Judge Craig Date: 22 December 2016