Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04507/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 February 2017
On 20 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

SG
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. A. Sesay, Duncan Lewis & Co Solicitors
For the Respondent: Ms Z. Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of the First-tier Tribunal Judge Hussain, promulgated on 28 November 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant asylum.

2. As this is an asylum appeal I have made an anonymity direction.

3. Permission to appeal was granted as follows:

"However, there may be some substance in the other two grounds in that the judge may well have made some factual errors, which may then have affected the judge's credibility findings. Whether or not any of this amounts to anything is something the appellant will have to establish but at this stage I am prepared to give the appellant the benefit of the doubt."

4. The Appellant attended the hearing.

5. At the outset of the hearing, Mr. Sesay stated that he wished to adduce an additional ground. He submitted that the judge had misdirected himself as to the law as the decision lacked findings on the best interests of the Appellant's child in accordance with section 55 of the 2009 Act.

6. Ms Ahmad stated that this had not been raised as part of the grounds and should not be admitted. However, were I were to admit it, she conceded that there had been no consideration of section 55.

7. Considering that the Appellant's basis of claim partly depends on her returning to Albania as a single mother, which was known to the judge, I found that the judge should have directed himself to a consideration under section 55, and I admitted this ground of appeal. I then heard further submissions from both representatives following which I reserved my decision.

Submissions

8. Mr Sesay submitted that the judge had misdirected himself. I was referred to paragraph 21 where it states "I have looked at the evidence and find nothing there that is inconsistent with the appellant's claim". However, in paragraph 32 he found that the Appellant's account was "both implausible in parts and inconsistent internally". He submitted that these two paragraphs were inconsistent with each other.

9. He submitted that there had been procedural unfairness in that the Respondent had accepted that the Appellant been threatened by her father and ex-boyfriend, but the judge had not accepted this [28]. It was submitted that it was not open to the judge to make any finding on this, and that he had gone beyond a concession of fact made by the Respondent to the detriment of the Appellant.

10. In relation to section 55 of the 2009 Act, he submitted that there was scanty reference to the child in the decision. There were no findings by the judge on the impact of removal on the Appellant's child.

11. Ms Ahmad made no submissions in relation to the Respondent's concession. In relation to the alleged factual errors made by the judge, she pointed out that the judge had recorded the evidence of when the Appellant had met her ex-boyfriend twice, [13] and [38]. In relation to the alleged inconsistency between paragraphs 21 and 32 she submitted that in paragraph 32 the judge had been looking at the evidence as a whole, whereas paragraph 21 was a finding that her account was not inconsistent with the background evidence.

12. In relation to materiality she submitted that I had to consider whether a different decision could have been reached by the judge in the First-tier Tribunal. The reasoning was detailed, the judge was aware of the Appellant's case and there was no material error of law. The judge had relied on the reasons for refusal letter and there was no challenge to that in the grounds of appeal.

13. In response Mr. Sesay submitted that the judge had engaged with irrelevant facts. For example he had got the dates of entry to the United Kingdom and application for asylum both wrong. It was unfair on the Appellant to have inaccurate facts recorded against her. He submitted that, even if the judge had accepted the concession, he had not engaged with the background evidence which was before him. I was referred to the bundle from page 118 onwards. There had been no consideration of the Appellant returning as a single mother with a child. The welfare and safety of the child had not figured at all in the judge's consideration. Even though trafficking had not been made out, there had been no consideration of the subjective risk. The errors of law were material.

Error of law decision

14. I have carefully considered the decision together with the grounds of appeal, which are not set out in the clearest of terms. However they do submit (albeit with reference to the wrong paragraph) that the judge had not properly considered the implications of the Appellant returning to Albania as a single mother with a young baby, and the subsequent social stigma. The grounds do not expressly either refer to the concession. However I find that this is an obvious point before me given the other grounds of appeal which relate to the Appellant's credibility.

15. Although the decision states that the findings start at paragraph 21, paragraphs 22 to 27 merely recount the reasons for refusal letter. Paragraphs 29 to 32 recount the Appellant's claim. In paragraph 28 there is a finding made as follows:

"Having considered the totality of the evidence, including the appellant's oral evidence and the evidence contained in her written statement of 19 September 2016, I have come to the view that I do not accept that the appellant has been threatened with harm either by her father or her boyfriend. I make this finding in spite of the concession offered by the Secretary of State in paragraph 32 of the refusal letter."

16. The judge acknowledges that the Respondent has conceded that the Appellant's father and ex-boyfriend have threatened her [28]. He had also set out this concession earlier in the decision when recounting the reasons for refusal letter [25]. This is a concession of fact, and I find that it was not open to the judge to go beyond this concession. I am mindful of the case of AZ (Home Office concessions) Cameroon [2003] UKIAT 00183 which refers to guidelines set out in the case of Carcabuk (00/TH/01426).

"The issue before the Tribunal was: In what circumstances (if at all) may an adjudicator or the Tribunal make adverse findings concerning the credibility of an appellant when the Secretary of State has not sought to impugn it? In paragraph 12 of the determination, a series of guidelines are produced. The refusal letter or, where appropriate, the Explanatory Statement should identify the matters in issue and make clear what facts, if any, are found in the applicant's favour. If the HOPO wishes to withdraw any concession made, he must inform the appellant or his advisers as soon as possible and it will be for the adjudicator to decide, if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand. If the concession is made by a HOPO, it must be accepted by the adjudicator. A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to withdraw the concession."

17. There is nothing in the decision to suggest that, either prior to the hearing, or at the hearing itself, the Respondent withdrew the concession that the Appellant had been threatened by her father and her ex-boyfriend. Ms Ahmad did not submit that this concession had been withdrawn. I therefore find that it was not open to the judge to go behind this concession and find that the Appellant had not been threatened by her father and ex-boyfriend. This was a concession which had been made by the Respondent in the reasons for refusal letter. It was not a matter in issue at the hearing.

18. I find that the judge erred in law in failing to accept the concession made by the Respondent, given that the concession had not been withdrawn [28].

19. I have further considered the findings of the judge in relation to the Appellant's credibility. In paragraph 21 he states "I have looked at the [background] evidence and find nothing there that is inconsistent with the appellant's claim". In paragraph 32 he states that the Appellant's account "is both implausible in parts and inconsistent internally". He first finds that her account is consistent with the background evidence, but later finds that it is implausible and internally inconsistent. The reasons given for this are set out in paragraphs 33 to 41. Paragraphs 33, 34, 36, 37, 38, 40 and 41 contain findings relating to the threat made by the Appellant's father and ex-boyfriend. However, as I have found above, it was not open to the judge to go behind the concession made by the Respondent that the Appellant had been threatened by her father and ex-boyfriend. Therefore I find the alleged internal inconsistencies and implausibilities to which the judge refers when finding that the Appellant's account lacks credibility refer to matters which had been established to the Respondent's satisfaction, and which the judge was not entitled to go behind.

20. I find that the judge found the Appellant to be lacking credibility due to inconsistencies and implausibilities relating to a matter which he was not entitled to consider. I find that this has affected his credibility findings in general. This error is compounded by the mis-recording of the evidence. The judge records that the Appellant said that she met her ex-boyfriend in August 2015 [13] and [38]. The Appellant says that she did not say this. Given that her claim is that she came to the United Kingdom in November 2014 with her ex-boyfriend, it is unlikely that she would have given evidence that she met him in August 2015. The judge has not explained how he considers that this could have happened, or why the Appellant would have given this evidence.

21. I find that there are errors of law in the judge's consideration of the Appellant's credibility which start from the fact that he went behind the Respondent's concession. I have considered the materiality of these errors, with reference in particular to the Appellant's child.

22. Given the fact that the Respondent had accepted that the Appellant had been threatened by her father and her ex-boyfriend, the central issue before the judge was the risk on return to the Appellant as a single mother having received threats from her father and ex-boyfriend. It was acknowledged at the hearing that the Respondent had considered this in some detail in the reasons for refusal letter. However the judge disposes of this issue in just two paragraphs, [42] and [43].

23. Paragraph 42 starts:

"Having considered the evidence at the round, I have concluded that I do not accept the premise of the appellant's claim that she has been the subject of threats by her father or her former boyfriend. It is for this reason that I have not gone onto consider whether there is a Convention reason covering the appellant's claim.

24. Given that the judge was not entitled to find that she had not been the subject of threats, I find he has erred in law in failing to consider whether there is a Convention reason covering her claim. He then states that, if he had to consider it, he would have been in agreement with the Respondent. As I have stated, the Respondent considered the issue in some detail, but further evidence was provided by the Appellant for her appeal. The judge has referred to the "back ground evidence relating to the country concerned", but he has not set it out in any detail [21]. He has simply relied on the reasons for refusal letter.

25. He has also failed to take into account the Appellant's child. There is only one cursory mention of the Appellant's child in the decision [40]. There is no consideration of the best interests of this child, which the judge has a statutory duty to consider.

26. I therefore find that the judge's errors of law when assessing credibility are material given that, as a result of finding that the Appellant was not threatened, he then failed to engage with the background evidence regarding risk on return. He failed to take into account the Appellant's child. He simply agreed with the Respondent's assessment without taking into account the further evidence provided by the Appellant to challenge this. I find that, had he considered this evidence on the basis that the Respondent had accepted that the Appellant had been threatened as claimed, he may have come to a different conclusion. I therefore find that the errors are material.

27. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given that I have found that the credibility findings cannot stand, due in part to the judge going behind a concession made by the Respondent, and therefore given the nature and extent of the fact-finding necessary to enable this appeal to be remade, having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

28. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside. No findings are preserved.

29. The appeal is remitted to the First-tier Tribunal for rehearing.

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 her or any member of her 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 18 February 2017

Deputy Upper Tribunal Judge Chamberlain