Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/03993/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 August 2016
On 31 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

k m k
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Kadic, Legal Representative from Elder Rahimi Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Swinnerton (the judge), promulgated on 24 June 2016, in which he dismissed the Appellant's appeal on all grounds.
2. The Appellant is a national of the Democratic Republic of Congo (DRC). She arrived in this country in June 2015 and claimed asylum on 3 August of that year. In essence her claim was based upon alleged political activities on behalf of the UDPS in the DRC, two periods of detention in 2011 and 2012, problems faced by her brother, political activities undertaken in the United Kingdom, and her sexuality (she claims to be a lesbian).
The judge's decision
3. The judge's decision is fairly lengthy, running to 118 paragraphs. However it is right to say that the findings of fact and reasons only really begin at paragraph 99, and then end at paragraph 105. The judge rejected the Appellant's claim that the DRC authorities had a continuing interest in her on the basis that he found it implausible that they would have waited for a certain period of time before issuing a summons for her to report to the police. Paragraphs 101 and 102 deal with discrepancies as to the particular course of studies undertaken by the Appellant whilst in Morocco. At paragraph 103 the judge found that the Appellant left the DRC on her own passport issued by the authorities in August 2012, some six months after her claimed second detention. The judge was not persuaded that the DRC authorities would have acted in that way if the Appellant's profile was as prominent as claimed. Paragraph 104 deals briefly with the Appellant's claimed sexuality. The judge did not find it plausible that her family would have sent her to Morocco if they had been against her sexuality. In paragraph 105 the judge states that he did not find the Appellant's account to be credible and found that the Appellant was not a credible witness. Article 8 is then dealt with in brief terms.
The grounds of appeal and grant of permission
4. The grounds of appeal are in essence threefold: first, it is said that the judge failed to make proper findings on material matters, a number of which are set out at paragraph 7 and 8 of the grounds; ground 2 alleges that inadequate reasons are provided for the limited findings made; finally, ground 3 asserts that the judge failed to deal properly or indeed at all with documentary evidence supplied by the Appellant in support of her case. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison on 20 July 2016.
The hearing before me
5. Although this is the Appellant's appeal I heard first from Mr Whitwell. In fairness to him, he acknowledged that the judge's decision was problematic. However he submitted that the judge was fully aware of the nature of the Appellant's claim as set out in various paragraphs at the beginning of the decision. At paragraph 99 the judge expressly says that he had considered all of the evidence in the round. There was an implicit finding that the judge had not believed anything said by the Appellant.
6. In the circumstances of this case I did not call upon Ms Kadic for submissions.
Decision on error of law
7. In my view there are material errors of law by the judge, as announced to the parties at the hearing.
8. It is true that the judge set out the nature of the Appellant's case early on in his decision. However, what is important is that the various elements of the case and the evidence pertaining thereto are dealt with properly by way of findings of fact and adequate reasons. In this case, and somewhat unfortunately, the judge's findings and reasons are, in the context of the decision as a whole, really fairly brief. There are of course certain findings stated between paragraphs 100 and 104 that are adverse to the Appellant's case. However on a fair reading of the decision and having looked for myself at the evidence before the First-tier Tribunal, there is real merit in ground 1 of the Appellant's grounds.
9. There is no express consideration of or finding on the claimed UDPS membership despite there being a number of sources of evidence relating to this. There is no finding on whether in fact there were two arrests and detentions in 2011 and 2012. There is no finding on the potentially corroborative documentary evidence relating to UDPS membership and the arrest warrant. There are no findings about the alleged ill-treatment suffered whilst in detention. There are no findings in respect of the alleged conditions of release. There are no findings on the brother's claimed activities, whether or not he himself was arrested in 2015, and the consequences to the Appellant thereof. There are no findings as to the Appellant's father and mother's circumstances and any harassment suffered by them as a result of her and her brother's claimed activities. There are no findings in respect of the Appellant's activities in the United Kingdom.
10. Notwithstanding the findings that were in fact made by the judge, the omissions highlighted above are in my view significant and all relate to material aspects of the Appellant's case. On this basis alone the decision is flawed and must be set aside.
11. In addition, the judge has failed to deal adequately with the issue of the Appellant's claimed sexuality. Reference is made in paragraph 104 to the photographs and there is clearly a plausibility issue taken in respect of the Appellant being sent to Morocco by her family. However there are no actual findings made in respect of the intimate photographs or the detail of the Appellant's own evidence. In my view this important and potentially discrete element of the claim required more substantial consideration than has been afforded to it by the judge. This is a further material error of law in the decision requiring it to be set aside.
12. In respect of the reasons challenge, it is probably the case that these would be sustainable insofar as they go. However, they certainly do not save the decision as a whole given the significant omissions set out above.
Disposal
13. Having set aside the decision of the judge I regard it as appropriate to remit this appeal to the First-tier Tribunal for a complete re-hearing with no previous findings of the judge preserved, a course of action to which neither representative objected. I issue relevant directions below.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.
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 their 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.
Directions to the Parties
(1) The remitted hearing shall a complete re-hearing, with no preserved findings of fact. All issues are 'live';
(2) The Appellant's representatives are to produce a single consolidated bundle containing all the evidence relied upon. This shall be served on the Respondent and filed with the First-tier Tribunal at the Hatton Cross hearing centre no later than 14 working days before the next hearing;
(3) The Appellant's representatives shall provide a skeleton argument covering all aspects of the Appellant's case and giving references to evidence relied upon in the consolidated bundle. The skeleton argument shall be served on the Respondent and filed with the First-tier Tribunal at the Hatton Cross hearing centre no later than 14 days prior to the next hearing.
Directions to Administration
(1) This appeal is remitted to the Hatton Cross Hearing Centre;
(2) The remitted hearing shall not be heard by First-tier Tribunal Judge K Swinnerton;
(3) The matter shall be listed on the first available date at the Hatton Cross hearing centre;
(4) There is a time estimate of three hours for the remitted hearing;
(5) There shall be oral evidence from the Appellant and one additional witness.

Signed Date: 29 August 2016
Deputy Upper Tribunal Judge Norton-Taylor