Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/04049/2018

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 7th March 2019
On 21st March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

[R S]
(ANONYMITY direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Holmes (Counsel), Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr Tan (Senior HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Mather, promulgated on 9th November 2018, following a hearing at Manchester on 22nd October 2018. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Russia, and was born on 1st January 1992. He appealed against the decision of the Respondent Secretary of State dated 26th February 2018, refusing his claim to asylum and humanitarian protection pursuant to paragraph 339C of HC 395.
The Appellant's Claim
3. The Appellant's claim is that he worked at the Chernobyl Plant in Russia. He was exposed to radiation after the Chernobyl nuclear disaster in April 1986. His father also worked at the Chernobyl Plant. He was arrested together with his friend and jailed for two or three years when his father was accused of allegedly financing unlawful military units. After his release his father had no problems with the Russian authorities until December 2016 when he was abducted in Grozny, by Chechen security forces. The Appellant did not report his father's kidnapping to the police as the people who took his father told him not to do so. Following his father's kidnapping, the Appellant and his family experienced financial difficulties. On 9th March 2017 the Appellant was abducted by five or six men in black uniforms, similar to those who had abducted his father, and he was driven by a vehicle for some twenty minutes to a wet basement where he was beaten and tortured. He has scars on his elbows and inside his arms. He was then detained a second time at night at the end of August 2017. He secured his release by the payment of a bribe. Two weeks later his friend contacted him to tell him that there was an order that he would be killed if he was detained again. The Appellant travelled to Moscow. He stayed some two weeks there with a cousin. He then left the country.
The Judge's Findings
4. The judge had regard to the medical report by Mr Graham Johnson, a consultant in accident and emergency medicine at St James's University Hospital in Leeds (see paragraphs 16(i) to (j)). There was also a report before the judge from Mr Robert Chenciner, and he concluded (at paragraph 16(k)) that the Appellant was perceived by the authorities because Ramzan Kadyrov, who is charge of Chechnya, has threatened to destroy families of terrorists. This expert had also said that sufficiency of protection was not available because Chechnya was a police dictatorship. It was further stated by the expert that the Appellant was able to leave Russia because he had not been charged with terrorism or murder or any other criminal offence. He had left Russia on a routine student visa. Since then, if he had been charged with murder or assisting terrorism, then there would be local wanted notice in Grozny against him. The judge observed how it was stated that, "even if there was not a wanted notice, then as a recognisable Chechen may return from UK with his visa expired, he would be questioned on arrival and the security people would contact the FSB in Grozny which would result in him being detained" (paragraph 16(k)).
5. The judge then went on to come to firm findings of fact under a section headed "Conclusions", in which the judge stated that she accepted that the Appellant was a credible witness, accepted the conclusions contained in the reports of Mr Johnson and Mr Chenciner (paragraph 19), and accepted that the Appellant had been persecuted in the past in Russia (paragraph 20).
Grounds of Application
6. The grounds of application simply state that in coming to her conclusions, the judge had failed to give any reasons at all. The conclusions reached at paragraphs 18 to 21, (with the latter stating that the Appellant had discharged the burden of proof), simply provided no reasoned basis for these conclusions. That being so, the judge erred in law.
7. On 5th December 2018 permission to appeal was granted on the basis that it was arguable that the judge had failed to give adequate reasons and that specifically, there was no explanation as to why the Appellant's account is accepted and nor any reasons for why the extra witnesses were accepted at face value.
Submissions
8. At the hearing before me Mr Tan, appearing on behalf of the Respondent Secretary of State, submitted that he could do no better than to refer to the grounds of application. This was a case where the judge had not addressed, by way of reasons, the main points that were in contention in the appeal before the Tribunal. He submitted that there were two halves to a decision. One half was to do with the medical evidence which the judge set out. The other half in this case, however, was to do with the reasons, and in this respect, the judge had failed to give adequate reasons for coming to the conclusions that she did.
9. For his part, Mr Holmes, submitted that there was no challenge to the medical evidence. That being so, the judge was entitled to take it as it stood. If that evidence was taken into account, then what it did was to paint a picture of the Appellant coming from Chechnya, which was controlled by Ramzan Kadyrov, where even without a "wanted notice", he would be recognisable as a Chechen male returning from the UK with his visa expired, and that would lead to his being detained and mistreated. That was a conclusion that the judge was entitled to reach given the objective evidence that was before her.
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of a error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows. This is a case where the judge, having set out the evidence before her in meticulous detail, and with care and completeness, nevertheless, failed to provide reasons for the conclusions that were reached. When the judge states that, "I accept the Appellant to be a credible witness" (paragraph 18), no reasons are given for this. When the judge states that, "I accept the conclusions contained in the reports of Mr Johnson and Mr Chenciner for the same reasons given by them" (paragraph 19), the judge neglects in providing a reasoned basis herself for the acceptance of these reports. It is well-established that it is "necessary for First-tier Tribunal Judges to identify and resolve the key conflicts in the evidence and explain in clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost" (see Budhathoki (reasons for decisions) [2014] UKUT 00341). The failure by the judge to do so in this case amounts to an error of law.
Notice of Decision
11. The decision of the First-tier Tribunal involved the making of an error of law. I set aside the decision of the First-tier Tribunal. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be determined by a judge other than Judge C. Mather, pursuant to Practice Statement 7.2.(b) because the nature or extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be remade is such that, having regard to the overriding objective in Rule 2, it is appropriate to remit the case to the First-tier Tribunal.
12. An anonymity order is made.
13. The appeal of the Secretary of State is allowed.

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.

Signed Date

Deputy Upper Tribunal Judge Juss 20th March 2019