Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04253/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 9 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

SS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Chapman of Counsel
For the Respondent: Miss Fijiwala a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant's application for asylum or ancillary protection on 13 April 2016. His appeal against that was dismissed by First-tier Tribunal Judge Onoufriou ("the Judge") following a hearing on 12 September 2016.
2. I retain the anonymity order previously made pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as the Appellant's asylum and ancillary protection claim, for reasons that will become clear, remains outstanding.
3. At the commencement of the hearing, I asked both representatives if either of them objected to my hearing the appeal given I had granted permission to appeal. Both were content for me to do so as it was accepted that there is a significant difference between my saying that it was arguable that there was a material error of law, and finding upon further examination whether in fact there was one. There was therefore no prejudice to either party in my hearing the appeal.
4. I granted permission to appeal (18 November 2016) as I was satisfied that it was arguable that the Judge may have made a material error of law in;
(1) not adjourning the hearing to enable an expert's report to be obtained on conditions in the camp the Appellant said he was detained in,
(2) not adjourning the hearing to obtain a translation of a document which the Judge incorrectly stated (as conceded by Miss Fijiwala) was written entirely in English,
(3) giving inadequate reasons for rejecting the medical opinion on the causation of scarring, and
(4) making adverse findings without considering the Appellant's explanations or not giving adequate reasons on various matters.

The Judge's decision

5. The Judge refused the adjournment request [11] noting that the Appellant chose to change solicitors at a late stage, already had plenty of time to obtain an expert's report, and had plenty of time to produce original documents. The Judge did not consider that the expert's report regarding prison conditions would assist the Appellant as reliance could be placed on objective evidence.

6. The Judge noted the submission [23] that the police station certificate was a scanned copy and with an adjournment he may have been able to obtain the original.

7. The Judge noted within the background material [31-32] guidance case law on Sri Lanka and ongoing difficulties there [33]. He noted "it is within this background that I have to assess the Appellant's case" [34].

8. The Judge concluded [35] that the arrest in Sri Lanka and detention was not credible. He did so because he attached little weight to the police station certificate given a discrepancy as to the Appellant's age and an address deletion. He noted that the certificate was in English and did not consider there to be any value in producing the original. He noted discrepancies as to whether the Appellant was taken to court, whether he was released officially from detention, where the friend who supplied equipment lived, and whether the person who informed on him entered the bus when he was detained, and questions how that person would be present at a routine check point. The Judge found it implausible that release money could be raised through the sale of land within 7 days.

9. The Judge then considers the medical evidence [36, 37]. He notes that the doctor does not explain whether the scars are a little more than 6 months old or several years old. He rejects the medical opinion regarding it being "just a remote possibility" that the scars were self-inflicted.

Submissions

10. It was asserted by the Respondent in the rule 24 notice (5 December 2016) that adequate reasons were given for not adjourning, and there were contradictions and inconsistencies in the account. It was orally submitted in addition to that, that whilst the Judge was plainly wrong regarding the language within the translated document, the error was not material.

11. It was orally submitted on behalf of the Appellant that the Judge made the material errors which formed the subject of the application and are summarised above [4].

Discussion

12. I am satisfied that the Judge materially erred in not adjourning the appeal for the following reasons.

13. The fact that the representative initially instructed did not identify the need to obtain an expert's report on the prison the Appellant said he was placed in did not mean that that piece of work should not therefore be carried out. It was not the Appellant's fault that the work was not done. The fact there would be a short delay to obtain it did not mean the work should not be done or that the Respondent would be prejudiced by a short delay. There had not been any previous adjournments. It was unfortunate that the application was not made until the day of the hearing. However, delay in itself was not a reason to exclude relevant information on a matter that went to the core of the claim. This is particularly so as there was no background evidence before the Judge dealing with the prison which he said could obviate the need to get a report as all the Judge had was background evidence on Sri Lanka and not India. Whilst it is of course the responsibility of the Appellant to obtain relevant evidence, the Judge does not appear to have considered whether to adjourn the proceedings to enable that background evidence to be obtained. The test is fairness not expediency.

14. The fact that the representative initially instructed did not identify the need to obtain a translation of the original police station certificate or get the original did not mean that that piece of work should not therefore be carried out. The Judge was plainly wrong (as conceded by the Respondent) regarding the language used within it. It was not the Appellant's fault that the work was not done. The fact there would be a short delay to obtain it did not mean the work should not be done or that the Respondent would be prejudiced by a short delay. There had not been any previous adjournments. It was unfortunate that the application was not made until the day of the hearing. However, delay in itself was not a reason to exclude relevant information on a matter went to the core of the claim.

15. I am satisfied that the Judge made a material error or law in relation to the assessment of the medical evidence in that adverse credibility findings were made [35] prior to that evidence being considered [36-37]. In addition, the Judge gave an inadequate explanation for rejecting the opinion of the doctor regarding the causation of the scars. The Judge did not seek clarification of the doctor's opinion regarding the age of the scars and should have considered adjourning the proceedings to enable that clarification to have been obtained.

16. Given the aforementioned, it is un-necessary for me to go through each adverse credibility point and whether the Appellant's explanation was considered or adequate reasons were given on each point.

17. Both representatives agreed that in light of that which I indicated at the hearing, it was appropriate for me to remit the matter to the First-tier Tribunal and that no findings should be preserved.

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.

The matter shall be remitted to the First-tier Tribunal, not before Judge Onoufriou, with a time estimate of 3 hours and an interpreter in Tamil being provided.

Signed:
Deputy Upper Tribunal Judge Saffer
9 February 2017