Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04007/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 27 March 2017
On 28 March 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
BAKHTIAR KHAN
(ANONYMITY DIRECTION NOT MADE )
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Chaudry from Broudie Jackson and Cantor
For the Respondent: Mrs Petterson Senior Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant , a national of Afghanistan claims that he was born on 1 January 2001. The Appellant appealed against the decision of the Secretary of State dated 11 December 2015 to refuse to grant a protection claim. First-tier Tribunal Judge Heynes dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
3. The background to this appeal is that the Appellant entered the United Kingdom on 15 July 2015 illegally and made a claim for asylum on the basis that he was 14 years old and that his father had been killed by the Taliban when he was 1 year old as they believed him to be a spy.. In 2004 the Taliban attacked his village and he and his mother went to live with a maternal uncle. When he was 10 years old the Appellant accepted money from the Taliban to become a suicide bomber. When he was 12 his mother suggested he leave Afghanistan which he did with other boys staying in Turkey for 3 years. He travelled to the UK via Italy, France and Hungary.
4. The Respondent refused the application because while it accepted his nationality it did not accept the date of birth he had given because the Appellant had claimed asylum in Hungary on 1 July 2015 and the date of birth recorded for him was 1 January 1997; the claim made in respect of the Taliban attack on his village was internally inconsistent; the Appellant failed to claim asylum in France; the Appellant denied claiming asylum in Hungary which undermines his general credibility; the Appellant could relocate to Kabul if he felt at risk in his home village.
5. The First-tier Tribunal Judge heard oral evidence from the Appellant. The Judge concluded that the Appellant had lied about his age and found that this fatally damaged his credibility. He found therefore that he had failed to prove that his core claim was true.
6. At the hearing before me Mr Chaudry relied on the grounds of appeal arguing that the only finding that the Judge made was in relation to his age: the finding in relation to his core account was inadequate, there was no consideration of background material and no consideration of relocation.
7. Ms Petterson on behalf of the Respondent readily conceded that the decision was wholly inadequate and that there was an absence of findings in relation to key issues in the case.
Error of Law
8. The grounds of appeal to the Upper tribunal content that the First-tier Tribunal Judge erred in that he failed to engage with the core account given by the Appellant as summarised above.
9. I remind myself of what was said by the Tribunal in MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), that It was axiomatic that a determination disclosed clearly the reasons for a tribunal’s decision. If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.
10. This decision was extremely brief, excluding the titles it was 2 pages long. The findings consist of a very brief set of findings in relation to the Appellants age and no adequate engagement with his core account other than its rejection as the Judge found that he had lied about his age. I find the inadequate reasons are an error of law. This error I consider to be material since had the Tribunal conducted this exercise the outcome could have been different. That in my view is the correct test to apply.
11. I therefore set the decision aside.
12. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
13. In this case I have determined that the case should be remitted as I have found there was an error of law because the Appellant was deprived of the opportunity for his case to be put to and considered by the First-tier Tribunal. In this case none of the findings of fact are to stand and the matter will be a complete re hearing.
14. I consequently remit the matter back to the First-tier Tribunal sitting at Manchester to be heard on a date to be fixed before me .
15. I made the following directions for the resumed hearing:
List for 3 hours
Pushto interpreter.
CONCLUSION
16. I therefore found that errors of law have been established and that the Judge’s determination must be set aside.
17. The case is remitted to the First-tier Tribunal to be reheard before me.

Signed Date 27.3.2017
Deputy Upper Tribunal Judge Birrell