Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04935/2016

THE IMMIGRATION ACTS

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

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

NH
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. A. Bandegani, Counsel instructed by Wimbledon 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 First-tier Tribunal Judge E. B. Grant, promulgated on 31 October 2016, in which she refused 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:

"The appellant says at ground 7 that the Judge overlooked evidence provided by the appellant in her reasons for dismissing the appeal. This arguable as the witness statement of [FM] and the photographs referred to do not appear to have been considered and evidence of the live witnesses may not have been fully considered."

4. Following the grant of permission clarification was sought by Mr. Sellwood of Counsel, who had represented the Appellant in the First-tier Tribunal and who had drafted the grounds of appeal, as to whether the grant was limited. I confirmed at the hearing that the grant of permission to appeal had not been limited, although it appeared that this had not been communicated back to the Appellant's representatives.

5. The Appellant attended the hearing. I heard brief submissions from Mr. Bandegani who started by referring me to paragraph 31 of the decision. Following his submissions, Ms Ahmad stated that she was not opposing the application. She conceded that there had been clear material errors of law in the fact-finding. She agreed with Mr. Bandegani that the appeal should be remitted to the First-tier Tribunal to be remade.

Error of Law

6. In paragraph 31 the judge states:

"I find as a matter of fact that the appellant engaged in a planned migration to the United Kingdom seeking to jump on the "gay bandwagon" and put forward an entirely false case to the respondent. For the avoidance of doubt I find that she is not a witness of truth upon whom any reliance can be placed."

7. Mr. Bandegani submitted that this was a wholly inappropriate statement and was the entry point to understanding how the judge had dealt with the appeal. He submitted that it displayed a preconceived scepticism and led to a perception of apparent bias.

8. Ground 1 of the grounds of appeal lists six separate and distinct parts of evidence which the judge failed to take into account. I have considered the decision carefully. It is brief. There is no consideration of the witness statement from the person with whom the Appellant lives. There is no mention of the other witness statements contained in the Respondent's bundle. There is no reference to the social media communications, or to the photographs of the Appellant and her partner. Further there is no reference to the Respondent's policy guidance. There are no reasons given for failing to take this evidence into account, and no reasons given for rejecting this evidence. I find that this failure to take the evidence into account, and the failure to give reasons for rejecting this evidence is a material error of law.

9. Ground 6 deals with the evidence of the witnesses. In paragraph [30] the judge states:

"Although she attends LGBGT (sic) meetings I am satisfied that this is simply to bolster a false claim and the two witnesses whose evidence was adduced before the Tribunal can add nothing more to the appellant's case other than what she has told them. I find she has lied to friends met at these events in addition to the respondent."

10. I find that the judge has failed to consider the evidence of these witnesses in the round. She has failed to give any reasons for rejecting the evidence other than that she finds that the Appellant has lied to them. She has assessed the Appellant's credibility and then turned to address the evidence of her witnesses. I find that she has erred at law in her approach which fails to take the witness evidence into account in the round.

11. Ground 2 submits that the judge took into account immaterial evidence. Paragraph 27 of the decision states:

"I find the account is not credible on any basis. If the appellant had genuinely sent her partner videos of the two of them together by email and photographs by email those documents or some of them would be accessible on the appellant's email account regardless of whether her mobile phone was broken or not. I draw an adverse inference as to her credibility from her failure to produce any corroborative material from her email account. Her explanation as to why those electronic documents no longer exist is not credible and I do not believe her."

12. The grounds of appeal make reference to the case of A, B and C CJEU judgment of December 2014: C-148/13, C-149/13 and C-150/13 in relation to how decision makers must not accept sexually explicit material when determining asylum claims on sexual orientation grounds. The judge drew an adverse inference from the fact that the Appellant had not provided this material, but legally this material was irrelevant. I find that the judge has erred in law in finding that the Appellant's credibility is undermined by her failure to provide this material.

13. I find that the judge's treatment of the evidence, both her failure to take into account that which was before her, and her drawing inferences from the absence of irrelevant evidence, adds to the appearance of bias which is suggested very strongly by the judge's conclusion that the Appellant had sought to jump on the "gay bandwagon". I find that this was an inappropriate phrase to use.

14. Given that I have already found that the decision involves the making of a material error of law, there is no need for me to consider the other grounds of appeal.

15. 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. I have found that the credibility findings cannot stand, 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.

16. I am grateful to Ms Ahmad for her approach to this appeal.

Notice of Decision

17. 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.

18. 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 19 February 2017

Deputy Upper Tribunal Judge Chamberlain