Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA040542015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th May 2017
On 30th May 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Osman dida
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr S Withwell, Home Office Presenting Officer
For the Respondent: Ms A Radford of Counsel, instructed by Fadiga & Co Solicitors

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Callender Smith promulgated on 18 July 2016 (the "Decision"), in which his appeal against the Secretary of State's decision refusing to grant him asylum was allowed. For ease, I shall refer to Mr Dida as the Appellant and the Secretary of State as the Respondent, as they were before the First-tier Tribunal.
2. In a decision promulgated on 10 November 2016 Upper Tribunal Judge Jordan [see Annex for the decision in full] found a material error of law in the Decision as follows, "that the treatment by the First-tier Tribunal Judge as to the evidence about the blood feud was materially flawed. In particular, I do not regard that there is sufficient analysis of the issues in the determination to support the conclusion that the appellant was at risk as a result of a blood feud" (paragraph 14). This followed criticism of the First-tier Tribunal's decision in that the findings made were a recitation of the Appellant's claim without evaluation of the evidence, that documentary evidence was considered to be reliable only because the Appellant was reliable and a failure to address head-on the reliability of two sources of information (the certificate of conviction and the Albanian authorities' response to the Respondent's inquiry) which were conflicting.
3. Upper Tribunal Judge Jordan adjourned the hearing to allow the Respondent to make enquiries from the Albanian authorities as to the authenticity of the certificate of conviction, if she felt it right to make such enquiries. At the resumed hearing on 19 January 2017, an adjournment was sought by the Respondent for further time to conclude those enquiries which was granted.
4. Due to an internal administrative error, further evidence was submitted on time and in accordance with directions given on 19 January 2017 by the Respondent as to the authenticity of conviction but it did not reach the appeal file. Prior to sight of the evidence, directions were issued to the parties on 22 March 2017 that the issue to be determined in the re-making of the decision was whether the Appellant is at risk on return to Albania as a result of a blood feud. The re-making decision would be on the basis of evidence already available unless the parties wished to submit evidence as to the Albanian Criminal Code which may be relevant as to the findings on the certificate of conviction. Neither party had given any indication of additional evidence that they wished to rely on.
5. The appeal came before me on 4 May 2017 for the re-making decision. Despite the Respondent re-submitting the further evidence of her enquiries from the Albanian authorities following receipt of the last directions, that evidence had still not reached the file and was handed up. There was also a further administrative difficult in that Counsel for the Appellant had not had sight of the evidence or the directions until the night before the hearing, albeit that at least the latter had been received by those instructing her. In the circumstances, Counsel was in some difficulty as to preparation for the hearing.
6. At the error of law hearing stage, Upper Tribunal Judge Jordan expected the results of any enquiries by the Respondent of the authorities in Albania as to the authenticity of the certificate of conviction to determine the credibility of the Appellant. However, although the outcome of those inquiries was that the certificate was genuine, the Respondent's position is that that is not necessarily inconsistent with her earlier evidence from the Albanian authorities that there was no blood feud. There is, in my preliminary view, support for that contention in the Respondent's reasons for refusal letter dated 1 December 2015 by reference to the Albanian Criminal Code which includes specific provisions for blood feud related murders, which were not the articles cited in the certificate of conviction in this case. The matter is not therefore as straightforward for the determination of the Appellant's credibility as previously thought.
7. In the circumstances where Counsel for the Appellant expressed some difficulty proceeding to deal with the appeal on 4 May 2017 (in particular on the Albanian Criminal Code point) and where the wider issue of the Appellant's credibility and risk on return to Albanian had to be determined (which was not as straightforward as anticipated), it was agreed that this case was more suitable to be remitted to the First-tier Tribunal for fresh determination in accordance with paragraph 7.2(b) of the Senior President's Practice Statement 7.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of a material error of law.

The decision of the First-tier Tribunal is set aside.

I remit the case to the First-tier Tribunal.

No anonymity direction is made.

Directions to the parties

1. This appeal is remitted to the First-tier Tribunal for complete rehearing. There are no preserved findings of fact.

2. Any further evidence relied upon shall be filed with the First-tier Tribunal and served upon the other party no later than 14 days prior to the hearing of the remitted appeals.

3. The Appellant is to file with the First-tier Tribunal and serve upon the Respondent no later than 14 days prior to the hearing of the remitted appeal a skeleton argument setting out relevant issues, with reference to evidence and case-law.

4. The First-tier Tribunal may issue further directions as required.

Directions to administration

1. The appeal is remitted and shall be heard at the Taylor House hearing centre on a date to be fixed by that centre.

2. The remitted appeal is to be listed before any Judge except Judge Callender Smith.

3. There is a time estimate of 3 hours for the hearing.

Signed Date 5th May 2017

Upper Tribunal Judge Jackson

ANNEX