Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04889/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th January 2017
On 9th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

j w k
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Toal, Counsel instructed by Birnberg Peirce & Partners
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Kenya whose appeal that she required international protection was dismissed on all grounds by First-tier Tribunal Judge Birk in a decision promulgated on 23rd September 2016. Grounds of application were lodged on the basis that, essentially, the judge had misunderstood the evidence presented. Permission to appeal was granted by First-tier Tribunal Judge Martins in a decision dated 19th October 2016. A Rule 24 notice was lodged by the Secretary of State noting that the judge based her findings on the Appellant's situation that should she be returned she would be supported by her aunt. It was said this finding was sound and based on the evidence.
2. Before me Mr Toal appeared on behalf of the Appellant and asked for permission to rely on additional Grounds of Appeal which can be summarised thus:
(a) it was not the Appellant's evidence that the view she was cursed was expressed only after her aunt's business was destroyed.
(b) the Appellant did not give evidence that the view that she was cursed was taken only after her cancer was in remission, not while she was suffering from cancer and blindness.
(c) Furthermore it was unfair for the Tribunal to rely against the Appellant on a number of matters which were not put to the Appellant during the hearing.
3. Mr Singh opposed the amendment to the grounds of appeal and I formally reserved my position on whether to allow the grounds to be so amended but, for reasons which will become clear, I am persuaded, as the grounds say, that they are compelling and I therefore formally allow the grounds to be so amended.
4. Before me Mr Toal expanded on his grounds. He referred me to the background material contained in the Appellant's bundle. None of this material had been referred to in assessing the evidence of the aunt. There was an important passage of evidence at DD12 (the asylum interview) at questions 62 to 65 which the judge had ignored. The aunt had not simply turned against her when she suffered a blow to her business. The judge had misrecorded the Appellant's evidence on this point.
5. Furthermore the judge had found against the Appellant on a number of points (set out in the grounds) which was not part of the Secretary of State's case in the refusal letter and were not put to the Appellant by the Home Office Presenting Officer during the hearing. These matters were, per the grounds,
(a) her mother's failure to mention in her letter that the Appellant was regarded as cursed;
(b) her mother's failure to mention the estrangement between the Appellant and the Appellant's brother;
(c) the timing of the Appellant being treated as cursed;
(d) if in fact she was not treated as cursed until some significant time after she fell ill, why that was; and
(e) the appellant's ability to obtain employment in Kenya.
I was asked to set the decision aside and remit the appeal to the First Tier Tribunal.
For the Home Office Mr Singh agreed that the findings at paragraph 26 of the decision could not stand. The letter from the Appellant's mother was poorly drafted and it could not be inferred by the judge that what she did not mention in that letter was a matter of importance. It was agreed that there were sufficient reasons to find that the judge had made a material error of law.
6. Given the proper concession of the Home Office little more need be said. I agreed with the parties that the judge had attached too much weight to what was not said in the letter from the Appellant's mother and failed to properly record the evidence of the Appellant's aunt. As such the judge's conclusion that the aunt would be able to support her in Nairobi was, on the evidence before the judge, unsound without different and further reasoning. The judge had made a number of negative credibility findings against the Appellant without those points being put to her for comment; in the absence of such points being taken in the refusal letter such an approach is generally unfair on an Appellant which is the case here.
7. Because the Appellant has not had a fair hearing the decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.
Notice of 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.

I remit the appeal to the First-tier Tribunal.

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 their 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

Deputy Upper Tribunal Judge J G Macdonald