Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03976/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 4 October 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

H K
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Sidoli instructed by Dorset County Council
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. The appellant is a citizen of Afghanistan. His date of birth is a matter of dispute. He arrived in the United Kingdom on 27 August 2015 and claimed asylum. He claimed to fear the Taliban in Afghanistan because his father was a driver for the American Forces.
3. On 3 December 2015, the Secretary of State refused the appellant's claim for asylum and humanitarian protection. The appellant appealed to the First-tier Tribunal against that decision.
4. A hearing took place before the First-tier Tribunal (Judge K Real) on 4 July 2016. The appellant did not attend and was not represented. The judge, nevertheless, decided to hear the appeal in the appellant's absence under rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604).
5. The judge found that the appellant was not a minor and that his account was not credible. As a result, she dismissed his appeal on all grounds.
6. The appellant sought permission to appeal to the Upper Tribunal and, on 16 August 2016, the First-tier Tribunal (Judge Pedro) granted the appellant permission to appeal. Permission was granted on two ground. First, it was arguable that the proceedings were procedurally unfairness in that the appellant had not been given an opportunity to attend the hearing. Secondly, the judge had arguably erred in law in finding that the appellant was an adult and not a minor as the age assessment had been withdrawn as a result of judicial review proceedings and that this had not been brought to the attention of the judge.
7. The appeal was listed before me on 4 October 2016 for mention.
8. At that hearing, Mr Richards, who represented the Secretary of State did not seek to uphold the First-tier Tribunal's decision. He accepted that there was material before the Secretary of State that called into the question the age assessment relied upon by the judge and also that, on the basis of documents held on the Tribunal's file, it did not appear that the appellant or his statutory parent the local authority, had been given notice of the hearing. There was procedural unfairness albeit through no fault of the Judge. Mr Richards accepted that the First-tier Tribunal's decision should be set aside and the appeal remitted to the First-tier Tribunal for a de novo rehearing.
9. Mr Sidoli, who represented the appellant, agreed that this was the proper disposal of the appeal.
10. I accept Mr Richards's submissions. The decision of the First-tier Tribunal cannot stand.
Decision
11. The decision of the First-tier Tribunal to dismiss the appellant's appeal involved the making of an error of law. That decision cannot stand and is set aside.
12. The appeal is remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Real.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 6 October 2016