Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05026/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 April 2018
On 14 May 2018

Before

UPPER TRIBUNAL JUDGE BLUM

Between

Secretary of State for the Home Department
Appellant
and

MR MD SODRUL ISLAM
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Ms N Willocks-Briscoe, Home Office Presenting Officer
For the Respondent: Mr M Bhutyani, Counsel instructed by Universal Solicitors

DECISION AND REASONS
1. The Secretary of State is the appellant. She appeals against a decision of Judge of the First-tier Tribunal Obhi who, in a decision that was either promulgated on 27 February or 2 March 2017 (it is not entirely clear from the documents which is the actual date of promulgation but it makes little difference), "allowed" the appeal of Mr Md Sodrul Islam.
2. Mr Islam is a national of Bangladesh whose date of birth is 10 August 1983. He entered the United Kingdom with entry clearance on 13 August 2008. He overstayed. He made various applications for leave to remain in 2014 based on human rights considerations but these were refused without a right of appeal. On 17 September 2015 he applied for asylum. His asylum application was based on his involvement with the Bangladeshi National Party. He claims that he was arrested in 2008 at a political gathering. He was attacked by members of the Awami League and arrested by the police. He was taken to hospital and claims he was further ill-treated on his discharge. He was granted bail from a court and told to report back in March 2008. On advice, he fled Bangladesh and entered the United Kingdom. He claims he was sentenced to two years in his absence. The Secretary of State refused the asylum claim on 4 May 2016. The respondent did not find the applicant a credible witness and rejected his account of political activity and his account of ill-treatment.
3. At the appeal hearing before the First-tier Tribunal on 21 February 2017 the judge considered documentary evidence and oral evidence from the appellant. The judge considered, in particular, document verification reports prepared by the Home Office in conjunction with the Foreign Office in Bangladesh suggesting that FIRs provided by the applicant were not genuine and that court documents purportedly issued in relation to the applicant were not genuine. The judge considered the oral evidence from Mr Islam and found that he could attach no weight to the documents produced by him. The judge held against Mr Islam the fact that he used forged documents. The judge held against Mr Islam his apparent inability to provide anything other than vague information about the BNP. The judge additionally held against Mr Islam his failure to claim asylum at an earlier opportunity. It is apparent from the decision at paragraphs 36 to 41 that the judge found Mr Islam to be a dishonest witness who had fabricated his claim. At paragraph 46 the judge stated, "For the reasons I have given I dismiss the appeal under the refugee convention and under human rights". However, under the heading 'Decision' the judge stated, "The appeal of the appellant is allowed under the refugee convention", the appellant of course being Mr Islam.
4. When made aware of her inconsistent conclusions the judge issued a 'supplementary decision' in which she explained that she mistakenly allowed the appeal and indicated, for the avoidance of doubt, that Mr Islam's appeal had in fact been dismissed. Mr Islam sought to appeal, initially out of time, although time was extended, the initial and supplementary decisions of Judge Obhi.
5. Permission was initially refused on all grounds by First-tier Tribunal Judge Shimmin on 31 October 2017. The grounds contended that the judge had acted outside of her power and that the second supplemental decision was ultra vires. The grounds also challenged the judge's adverse credibility findings. The grounds challenging the substance of Judge Obhi's decision were very general in nature and made a number of unsupported assertions.
6. Permission was however granted in a renewed application to the Upper Tribunal. On 15 December 2017 Upper Tribunal Judge Grubb found that it arguable, in light of the Upper Tribunal decision in Katsonga (slip rule; First-tier Tribunal's general powers) [2016] UKUT 288 (IAC), that the judge had no power to amend the decision or make a supplementary decision after it had been promulgated. Judge Grubb however found there was absolutely no merit in the challenge to the judge's substantive assessment of Mr Islam's asylum claim.
7. At an error of law hearing on 1 February 2018 Upper Tribunal Judge Finch concluded that the First-tier Tribunal did not have power to amend her initial decision following the Upper Tribunal decision in Katsonga. As a consequence, the only decision that was still in place was that allowing Mr Islam's appeal. Judge Finch allowed Mr Islam's appeal on this limited basis and to the limited extent only that the First-tier Tribunal had no jurisdiction to make a supplementary decision.
8. In giving directions Judge Finch indicated that if the Secretary of State wished to appeal against Judge Obhi's decision she must make an application to extend time and to submit appropriate grounds. An application to extend time supported by grounds was received by the First-tier Tribunal on 27 February 2018. The First-tier Tribunal granted permission to appeal to the Secretary of State in a decision dated 14 March 2018 and extended time in light of Judge Finch's directions.
9. I heard very brief submissions from both representatives at the hearing on 30 April 2018. It is absolutely clear that Judge Obhi intended to dismiss Mr Islam's appeal and that she simply made a mistake when stating that the appeal was allowed. I am satisfied this is a material error and I set aside the decision. I proceed to remake the decision.
10. Permission was refused in respect of challenges to the substance of Judge Obhi's decision. Even if permission had not been refused I am entirely satisfied that the First-tier Judge took into account all relevant evidence before her and reached decisions rationally open to her. She was unarguably entitled, for the reasons given, to find the documentary evidence provided by the applicant to be unreliable. There was no reason for her to go behind the findings of the document verification report and there was no risk that the applicant's details or identity were disclosed to the Bangladeshi authorities. She was fully entitled to take into account the applicant's vagueness when asked questions about the BNP and she was entitled to hold against him his immigration history, particularly the significant delay in his claim for asylum given that he had previously made a human rights claim. In these circumstances I find that the judge gave cogent and legally sustainable reasons for her conclusion and I dismiss Mr Islam's appeal.
Notice of Decision
The decision of the First-tier Tribunal is set aside. I remake the decision, dismissing Mr Islam's protection and human rights appeal.
No anonymity direction is made.

4 May 2018
Signed Date
Upper Tribunal Judge Blum