Tribunal decisions

The decision

IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001053
[PA/04925/2019]

THE IMMIGRATION ACTS

Heard in George House, Edinburgh
Decision & Reasons Promulgated
On 5 May 2022
On the 11 July 2022
Extempore

Before

UPPER TRIBUNAL JUDGE MACLEMAN
UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

TS (ASM)
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr J Mullen, Senior Home Office Presenting Officer
For the Respondent: Mr Forrest, instructed by Gray & Co, Solicitors, Glasgow

DECISION AND REASONS
1. The Secretary of State appeals with permission against a decision of First-tier Tribunal Judge Prudham in which the judge allowed the appeal ASM (whom we refer to as the appellant as he was below) against the decision of the Secretary of State to refuse his asylum and protection claim. That decision was made in 2019 but subsequent to that the Secretary of State decided to grant the appellant discretionary leave to remain, his wife and children having been recognised as refugees.
2. The core of the appellant’s case is that he is an Afghan Sikh and as a result faces persecution on return to Afghanistan. The Secretary of State submits that the appellant also holds, or is in fact only an Indian national and that, having Indian nationality, he fails to meet the definition for refugee as there is another country of nationality to which he can turn for protection. Thus the appellant’s nationality is at the core of the asylum appeal.
3. As both parties accept, the appellant has in the past used an Indian passport issued which appears to be genuine and which was used by him on at least two occasions to travel to the United Kingdom, having properly been issued with visas.
4. It is necessary to deal with a preliminary point first. This arises from the fact that the appellant was granted a discretionary leave to remain in 2020. By operation of Section 104 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) required the Tribunal to be treat the appeal as abandoned pursuant to sub-Sections 104 (4A) and (4B).
5. Section 104 (4B) permits the appeal to continue so far as notice is given in accordance with the Tribunal Procedure Rules that he wishes to pursue his appeal. For reasons which are unclear it does not appear to us that formal notification of the grant of leave was given to the Tribunal as is envisaged by the 2002 Act. Certainly, there appears to have been a failure at the very least of the First-tier Tribunal in complying with Procedure Rule 6, which requires it to serve notice if the appeal is to be treated as abandoned and giving the appellant 28 days within which to serve a notice saying that he wishes to continue.
6. In this case, it is abundantly clear from the fact that there were several interlocutory hearings including a detailed decision from Judge Buchanan following a Case Management Review on 11 May 2021. It is evident from these that no party seems to have realised that there was a problem arising from the grant of leave although they were clearly aware of all the facts. Following the principles of MSU (S.104(4b) notices) Bangladesh [2019] UKUT 412 Mr Forrest sought permission to give notice late that so far as is necessary the appellant wished to continue with the appeal.
7. Having had regard to the principles set out in MSU, we make the following observations. First, the delay was serious and significant, but all the parties appear to have proceeded without any thought that there was any difficulty caused by the grant of leave. It is arguably implicit in the way that the case was managed by the appellant and his representatives and indeed by the Secretary of State that they thought that notice had been given, thought there was no problem and they proceeded on that basis. We consider that it would be in interests of justice to exercise our powers pursuant to Section 27 of the Tribunals, Courts and Enforcement Act 2007 to extend the time in this case to permit the appeal to proceed.
8. The effect of that is that although potentially the hearing before the First-tier Tribunal and indeed everything that followed from that was a nullity if the Tribunal and indeed the Upper Tribunal did not have jurisdiction, the effect of the notice, which we accept lately, is to retrospectively cause the appeal to have been pending without invalidating any act by the First-tier or the Upper Tribunal that had been done without jurisdiction. Accordingly, we are satisfied that the decision of the First-tier Tribunal is valid as was the grant of permission to appeal to the Upper Tribunal made by the Secretary of State.
9. The judge in this case heard evidence from the appellant and also had several inventories of productions provided to him. His decision as to the facts starts primarily at section 22 where he notes that the burden of proof is on the appellant and the standard of proof is as identified correctly and the judge, having had regard properly to the case of Hussein and Another (Status of passports) [2020] UKUT 250, he also directed himself properly in line with MA (disputed nationality) Ethiopia v SSHD [2008] UKAIT 32.
10. The judge noted that the appellant had previously held an Indian passport, directed himself in line with Hussein and noted that there was a tension in the respondent’s acceptance of the Afghan identity documents for the wife and children but not for the appellant. He inferred from the births of the children in Afghanistan that the appellant was resident in Afghanistan, this being a natural conclusion if one accepts the identity documents for the family are genuine. He accepted that the appellant had travelled to the UK from India but noted that there had been no acceptance that he had travelled to India from Afghanistan.
11. The judge also noted although it was not determinative, it was strange that if the appellant was an Indian national, why had he chosen to remain in Afghanistan with his family after the conflict began in 2001. He considered also his good knowledge of Afghanistan was consistent with him being an Afghan national. The judge also gave weight to the letter from Khalsa Diwan Afghanistan, a charity which operates in the United Kingdom, stating that one of the trustees had known the appellant’s family in Jalalabad. The judge then concluded at 28: “When I weigh these elements, I find that the appellant’s assertion that he is an Afghan national to be credible and I accept the same. It follows that the appeal is allowed.”
12. The Secretary of State sought permission to appeal on a number of grounds averring that the judge had not considered the evidence holistically or provided adequate reasons, given that he had not considered the possibility that the Afghan passport was fraudulently obtained or that the appellant is a dual national. In contrast to that he had accepted at face value that the Indian passport had been fraudulently obtained without finding how this had been done, despite there being no proper evidence to explain how the appellant could have obtained the document fraudulently. It is averred also that undue weight had been placed on the fact that the appellant’s wife and children had been accepted as Afghan nationals, the judge assuming that this indicated that the appellant could be an Afghan national but failing to consider that as an Indian man he could have married an Afghan wife; and, had not taken into account that it did not automatically mean that the appellant had since obtained Afghan nationality that he would have ceased to hold Indian nationality. The Secretary of State submitted in conclusion that the judge had failed adequately to examine the evidence, resulting in a lack of reasons for reaching the conclusions.
13. Subsequent to that, the appellant’s representatives provided a Rule 24 response, followed by a response pursuant to Rule 25 from the Secretary of State. Both representatives relied on these in their submissions to us.
14. Mr Mullen submitted in addition to the points made in the Rule 25 notice that there was no decision whether the appellant’s Indian passport was valid or not and that there was a failure properly to explain how the appellant could have got it, the only evidence being that the Taliban had got it for him and there has been oral evidence.
15. Mr Forrest strongly disagreed with that but accepted fairly our observation that there was no finding that the appellant was not an Indian national. He submitted, however, the fact was not a material matter and that it was implicit in what the judge had said at paragraphs 23 to 27 of his decision, that he had concluded that the appellant was not an Indian national. He submitted that in reality, on a proper construction of the grounds of appeal and the oral submissions, that the Secretary of State had simply disagreed with the findings of the First-tier Tribunal.
16. We consider that the failure to make a finding with regard to whether or not the appellant is an Indian national is an error of law and is material as it goes to the core of the claim to be entitled to refugee status. If a person holds citizenship of more than one country, then in order to qualify as a refugee, it is incumbent on that person to show that they have a well-founded fear of persecution in both or all of their countries of nationality. The judge therefore was required in the circumstances of this case to make a decision on that point. If he had fairly concluded that the appellant is not an Indian national, then that would have been the end of it because if it was accepted that the appellant is solely an Afghan national it was accepted he is a refugee. There is no acceptance that if the appellant is also an Indian national that he would have a well-founded fear of persecution in India.
17. We do not consider that the judge reasoning supports the contention that it is implicit that he had concluded that the appellant was not a citizen of India. Contrary to Mr Forrest’s submission, we do not consider that the assessment of the evidence was holistic as required by Hussein in that in particular there was no view taken as to the reliability or credibility of the appellant’s explanation as to how he obtained the Indian passport nor does there appear to have been any consideration of evidence over and above the circumstances in which the family were born in Afghanistan which obviously it indicates they were there at that time but that is over an extended period and it is not necessarily or indeed in any way inconsistent with the appellant having lived in India or being an Indian national who for whatever reasons decided to reside in Afghanistan.
18. We do not consider that the fact that the Indian passport relied upon by the Secretary of State has expired some years ago is indicative that the appellant had lost Indian nationality nor is it a matter which takes the appellant’s case much further because the judge did not make any finding about whether the appellant’s nationality may have lapsed, whether he had acquired Afghanistan nationality or whether that would have the effect of cancelling his Indian nationality.
19. Accordingly, for these reasons we consider that the error in failing to reach a finding about the appellant’s Indian nationality as evidenced by a passport which he had used was material in this case, given that the judge does not properly make findings on that issue which goes to the core of the refugee claim.
20. In the circumstances, and as both parties have indicated, we consider that it would be appropriate to remit this appeal to the First-tier Tribunal. We have given thought as to whether it would be appropriate to retain any findings of fact. We conclude that it would not be in the interests of justice to do so.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error of law and we set it aside
2. We remit the appeal to the First-tier Tribunal for it to make a fresh decision on all issues.

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 6th May 2022
Upper Tribunal Judge Rintoul