Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04283/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 27 February 2017
On 02 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

m v v
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representative
For the Respondent: Mr M Diwncyz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 we make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. The appellant is a citizen of Russia who was born on 7 April 1981. She entered the United Kingdom as a visitor on 23 September 2015 and claimed asylum. On 14 April 2016 the Secretary of State refused her claims for asylum, humanitarian protection and on human rights grounds.
3. The appellant appealed to the First-tier Tribunal and in a decision dated 26 October 2016, Judge Clemes dismissed the appellant’s appeal on all grounds.
4. On 8 December 2016, the First-tier Tribunal (Judge I Murray) granted the appellant permission to appeal to the Upper Tribunal.
5. On 20 December 2016, the Secretary of State filed a rule 24 response seeking to uphold the judge’s decision.
6. The appeal was listed before us for hearing on 27 February 2017. The appellant did not attend. The appellant’s previous representative had notified the Upper Tribunal by letter dated 18 January 2017 that they no longer represented the appellant. We were satisfied that the notice of hearing had been served on the appellant at the address notified to the Tribunal and on the Tribunal’s file. We considered it in the interest of justice to proceed with the hearing in the absence of the appellant under rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
7. Before the judge, the appellant’s claim was that she and her husband had organised and participated in protests against the Russian government’s activities in Ukraine. Both the appellant and her husband had been arrested and detained by the police. They had both been abused whilst in detention and, in the appellant’s case, she had been subject to both physical and sexual violence.
8. In support of her case, the appellant relied upon two expert reports from Dr Rano Turaeva-Hoehne. One of those reports focused on the authenticity of a number of documents, upon which the appellant relied, to corroborate her claim that she had been arrested and detained. The documents are at pages 16-61 of the appellant’s bundle and the report is at pages 9-15 of that bundle. In addition, in a separate bundle there is an eleven-page report dealing with the background situation in Russia and the appellant particular claim.
9. In his determination, the judge noted at para 15 that the two reports from the expert were not accompanied by her CV. Before us, Mr Diwncyz indicated that the Secretary of State’s Counsel at the hearing had submitted that the report should be given little weight in the absence of a CV which established Dr Turaeva-Hoehne’s expertise and experience. We were told that the judge allowed the appellant’s representative time in order to submit post-hearing the expert’s CV. Mr Diwncyz informed us that the expert’s CV had, indeed, been supplied to the respondent by facsimile on 17 October 2016 which was three days after the hearing. He provided us with a copy of that correspondence which included a covering letter addressed to the First-tier Tribunal in Newport dated 17 October 2016. That letter and the accompanying CV, is not contained within the Tribunal’s file. There is, however, attached to the appellant’s grounds of appeal to this Tribunal both a copy of the covering letter of 17 October 2016 and a “result report” for a facsimile transaction to the Tribunal of a ten-page document. That precisely coincides with the length of the document, namely the covering letter and CV. Mr Diwncyz did not seek to argue that the Tribunal had not received the expert’s CV post-hearing but prior to the promulgation of the judge’s determination on 26 October 2016. Unfortunately, that CV plainly did not reach the judge as is clear from para 15 of his determination. Given the submission of Counsel for the Secretary of State before the judge that the reports should be given ‘little weight’ in the absence of a CV, Mr Diwncyz accepted that there was a procedural irregularity and an error of law such that the First-tier Tribunal’s decision could not stand and should be set aside.
10. In the light of that concession, which we agree was properly made, and given the significance of the expert reports to the appellant’s claim (in particular her credibility) we are satisfied that the First-tier Tribunal’s decision to dismiss the appellant’s appeal involved the making of a material error of law and the decision is set aside.
11. The proper disposition of the appeal is that it is remitted to the First-tier Tribunal and we direct a rehearing de novo before a judge other than Judge Clemes.

Signed

A Grubb
Judge of the Upper Tribunal

Date