Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04587/2016

THE IMMIGRATION ACTS

Heard at Bradford Decision & Reasons Promulgated
On 22 February 2017 On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

RIAZ AHMED
(ANONYMITY DIRECTION NOT MADE) Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

Representation:
For the Appellant: Ms G Patel, Counsel, instructed by Amjad Malik Solicitors
For the Respondent: Ms R Pettersen, Home Office Presenting Officer

DECISION AND REASONS

Anonymity

1. The First-tier Tribunal did not make an anonymity direction. The Appellant has not sought an order and I consider that there are no reasons to justify an order so none is made.

Background

2. The Appellant has been granted permission to appeal to the Upper Tribunal from the decision of First-tier Tribunal Judge S.T. Fox (hereafter “the judge”), whereby he dismissed the Appellant’s appeal against the decision of the Secretary of State to refuse to recognise him as a refugee, or otherwise requiring international protection.

3. The Appellant is a national of Pakistan born 10 April 1947. He entered the UK on 13 March 2013 as a visitor. He first applied for leave to remain in the UK under the Immigration Rules (“the Rules”). The Respondent refused that application in a decision dated 31 August 2014. His appeal against that decision was heard and dismissed by Judge Doyle on 9 March 2015. On 10 September 2015, the Appellant claimed asylum due to his claimed fear of his daughter-in-law’s previous fiancee as a consequence of his son marrying his daughter-in-law when she was betrothed to another. The Respondent’s decision refusing that application was made on 22 April 2016. The Appellant’s appeal was heard by the judge on 19 October 2016. The Appellant was represented by Ms Patel (as he is before me); and the Respondent by Mr Bell. At the outset of the hearing before the judge Ms Patel made an application for an adjournment on the basis that a witness, namely, the Appellant’s daughter had become ill and was unable to attend the hearing. The judge refused the application. The hearing proceeded and the Appellant gave oral evidence.

4. The judge’s findings of fact are set out at paragraphs [17] onwards. He considered the claim in light of the background evidence. The judge took the decision of Judge Doyle as his starting point and also considered a decision of Judge Turnock dismissing the appeal of the Appellant’s daughter-in-law heard on 26 September 2014. The judge considered that no new material or information was forthcoming since the dismissal of the Appellant’s previous appeal before Judge Doyle. The judge observed various deficiencies in the account and the delay in claiming asylum and further found the Appellant could internally relocate, and that, a sufficiency of protection was available in Pakistan. The judge thus concluded the Appellant was not entitled to international protection. Further, the judge found that the requirements of the Rules were not met and that a grant of leave was not warranted outside of the Rules contrary to Article 8 of the ECHR.

The Application for Permission to Appeal

5. The Appellant’s representatives applied on his behalf for permission to appeal to the Upper Tribunal and permission was granted by the First-tier Tribunal on 7 December 2016. On 30 December 2016, a Rule 24 response was settled on behalf of the Secretary of State opposing the Appellant’s appeal.

The Hearing in the Upper Tribunal

6. At the hearing before me, I heard submissions from both representatives. I reserved my decision which I now give with reasons.

Decision on Error of Law

7. Ground 1 contends that the judge erred in refusing to adjourn the hearing to enable the attendance of a witness (the Appellant’s daughter) who had fallen ill shortly before the hearing. I indicated at the hearing that there was no merit in this ground. Ms Patel did not (rightly) pursue it. The judge gave adequate reasons for refusing the application at [6]. Given that no issue was taken by the Respondent with the witness’s absence and Ms Patel’s acceptance that the witness had nothing additional to add to her written testimony, there was plainly no unfairness.

8. I am also not satisfied that there is any merit in Ms Patel’s complaint of the judge’s decision in respect of Article 8 of the ECHR. Ms Patel relied on her grounds which essentially seek to criticise the judge for his failure to take into account relevant factors such as the mental health of the Appellant and his wife, and the effects of removal upon them and their children and grandchildren in the UK. I am satisfied that Ms Patel’s grounds are no more than a disagreement with the judge’s findings and disclose no material error of law.

9. The judge’s consideration of the Article 8 claim is comprehensively set out at [51] - [68]. While the judge did not specifically refer to the House of Lords judgement in Beoku-Betts, it is clear he had in mind the rights of the Appellant’s children and grandchildren and took into account their ability to maintain contact with the Appellant and his wife [62]. The judge was plainly aware of the Appellant’s and his wife’s health issues and took them into account. He noted that health-care was available to them in Pakistan [58]. The judge rightly noted that no evidence was forthcoming from any family member, save for his daughter’s written testimony, which the judge considered. The judge noted that her evidence was “not overwhelming by any stretch of the imagination”, and concluded after consideration of her bank statements that no evidence of dependency upon the daughter had been established [61]. These findings were open to the judge on the evidence before him.

10. While the judge’s assessment of the public interest criteria pursuant to section 117B of the Nationality, Immigration and Asylum Act 2002 could have been clearer, and would have been best placed set out within his Article 8 findings rather than amidst his credibility findings relating to the protection claim [19], the latter is a criticism of form rather than substance and, in respect of the former, I am not satisfied the judge materially erred in his consideration thereof. While the judge referred to the Appellant’s ability to speak “some” English; the lack of an English language certificate and his age [19], no weight appears to have been expressly attributed to these factors and, even if the contrary could be inferred, it is clear the judge did not place an overbearing emphasis on such criterion in assessing the balance such that it was determinative, and nor did it outweigh the many other reasons he gave for finding removal was proportionate. I am thus satisfied the judge gave clear and sustainable reasons for finding that the Article 8 claim was not made out. There is no error of law in the judge’s consideration of the Appellant’s Article 8 claim.

11. I am however satisfied that in an otherwise well-reasoned consideration of the Appellant’s protection claim that the judge’s decision is marred by a material error of law. It is not necessary to traverse all the grounds raised by Ms Patel as I am satisfied the following is sufficient to render the decision unsafe.

12. Firstly, there was a procedural irregularity giving rise to unfairness. The judge had before him the decision of Judge Turnock dismissing the protection appeal of the Appellant’s daughter-in-law. The facts of her claim were inextricably linked to the claim put forth by the Appellant, but the Appellant’s account relied on additional events occurring after his son and daughter-in-law left Pakistan in 2012. The judge considered the adverse findings made by Judge Turnock and considered his decision was of significance and relevant to the Appellant’s case [22]. While there can be no quarrel with that observation there are difficulties with the judge’s approach. On perusal of the Tribunal’s file it appears that the decision of Judge Turnock was faxed to the First-tier Tribunal on the morning of the hearing, but it is not clear when that decision was placed before the judge. The representatives agreed before me that neither party had adduced that decision at the hearing (and ought to have done so). It thus appears that the judge, of his own motion, sourced a copy of Judge Turnock’s decision without notice to the parties.

13. Ms Pettersen conceded the judge erred in doing so and while I do not agree with Ms Patel’s submission that this decision was not relevant to the Appellant’s claim, I am satisfied that the judge’s consideration of this evidence was procedurally unfair. The judge was clearly influenced in part by the decision of Judge Turnock in his assessment of the Appellant’s claim and fairness dictates that he should have been given an opportunity to address that adverse decision either in evidence or in submissions. While the judge’s decision may well turn out to be correct, I am satisfied that the manner and route by which that decision has been reached is flawed. Given the fundamental nature of the protection sought by the Appellant, I am satisfied that the error is material.

14. Further, at [20] the judge had regard, as he was required to do, to section 8 of the Asylum and Immigration (Treatment of Claimant’s, etc.) Act 2004 and took into account the Appellant’s failure to advance an asylum claim before Judge Doyle. The judge found the Appellant’s credibility was thereby damaged because “he had not referred to the subject matter which finds this Appellant making this appeal” [21]. That finding is in plain error because it is clear from Judge Doyle’s decision that the Appellant in his evidence referred to threats received from his daughter-in-law’s family. I am satisfied the judge thus erred in his application of primary legislation in his assessment of credibility.

Decision

The decision of the First-tier Tribunal contained a material error of law, such that it shall be set aside.

The appeal is remitted to the First-tier Tribunal at North Shields for a de novo hearing of the Appellant’s protection claim before any judge apart from Judge S.T. Fox; Judge Doyle and Judge Turnock. It is a matter for the First-tier Tribunal as to whether Ms Patel’s request for the matter to be transferred to the Appellant’s nearest Hearing Centre (Bradford) can be accommodated.

Signed Date: 20 April 2017

Deputy Upper Tribunal Judge Bagral