Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04026/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 8 November 2016
on 10 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

EBRIMA [N]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr H V McCusker, of McAuley McCarthy & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge P A Grant-Hutchison, promulgated on 22 August 2016, dismissing his appeal against refusal of asylum as a gay man from the Gambia.
2. Mr McCusker submitted further to the grounds as follows. The only reasons for rejecting the appellant's credibility were at paragraph 14. Five reasons could be identified, none of which stood up to scrutiny. The first was that the appellant at interview did not "develop" his sister's or his family's reaction to finding out he was homosexual, but he had given full answers at Q/A 68 - 71 and had not been asked anything further. The judge said it was "highly unusual" that he was released after his first detention, when he did not confess, and after his second, when he did. The judge did not explain, and there was nothing in the appellant's or in the background evidence to show why release would be "unusual". The judge said it was unclear why the appellant would find it necessary to remind his sister he was homosexual before his marriage, but his reluctance to marry was precisely the reason for discussion. The judge did not say why he thought the appellant's answers at Q/A 66 and 71 were contradictory, and on examination there was no significant inconsistency; the appellant was describing different circumstances at different periods of his life. The judge founded on failure to claim asylum in countries through which the appellant travelled, but he was acting on advice, and the fact that he speaks English explained his preference. The reasons did not support the conclusion reached. Separately, the appellant had given evidence that he had a scar on his neck as the result of torture, and that he was trying to obtain a medical report, but the judge did not address that point. The medical report arrived before permission was granted. The judge had failed to deal with the outcome in the alternative that the appellant was gay, although the refusal letter had done so. The errors required a fresh hearing.
3. Mr Matthews, very fairly, observed that there might have been an error regarding a medical report, although not raised as such by the grounds. The report was known to have been sought prior to the hearing in the FtT. It was obtained and sent to the FtT after the hearing but well before the decision was issued. The judge might have explained why he declined to take it into account, or might have given the respondent the opportunity to make submissions in response, but it should not simply have been ignored. It might not have been drawn to the attention of the judge, but in that case there had been a failure of procedure which might amount to error of law. The appellant gave evidence of the existence of the scar and how he came by it. The judge did not deal with that evidence. There was now corroboration of the scar and its nature ("difficult to imagine what type of injury other than a knife would produce the linear cut to the neck"). Without conceding all points made for the appellant, the criticisms did show some inadequacy of reasoning. Taking matters in the round, the decision could not safely stand.
4. I noticed after the hearing that there is an envelope on the file marked "F A O Judge Grant-Hutchison" and below that "already promulgated". It seems likely that there was a procedural mishap, capable of constructively amounting to error of law.
5. The decision of the First-tier Tribunal errs in law, as explained above, and as conceded. It is set aside. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
6. The member(s) of the FtT chosen to consider the case or not to include Judge P A Grant-Hutchison.
7. No anonymity direction has been requested or made.

9 November 2016
Upper Tribunal Judge Macleman