Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05426/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd April 2019
On 25th April 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

Mrs D R H H
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs C Jaquiss
For the Respondent: Ms S Cunha

DECISION AND REASONS

Introduction
1. The Appellant, born on 14th October 1971, is a citizen of Iraq. The Appellant was represented by Mrs Jaquiss. The Respondent was represented by Ms Cunha, a Presenting Officer.

Substantive Issues under Appeal
2. The Appellant had made an application for asylum on 26th September 2016 which had been refused by the Respondent on 11th April 2018. The Appellant had appealed that decision and her appeal was heard by Judge of the First-tier Tribunal Asjad sitting at Birmingham on 9th August 2018. The judge had dismissed the Appellant's appeal. Application for permission to appeal had been made and had been refused by the First-tier Tribunal on 17th October 2018. Application to renew the Grounds of Appeal to the Upper Tribunal had been made and permission had been granted on 24th January 2019 by Upper Tribunal Judge Gill. On 6th February 2019 the Respondent had provided a Rule 24 notice.
Submissions
3. After considering the judge's decision it was agreed by the representatives that a material error of law had been made due to the failure of the judge to consider evidence provided by the Appellant's daughter within his decision.
4. This was in many ways a properly considered and argued decision. However, as accepted by both representatives, at no stage in her consideration of the evidence did the judge make reference to, or consider, the evidence of the Appellant's daughter. She had at paragraph 2 recorded the fact that she had heard evidence from the daughter, noted that evidence in the Record of Proceedings and had stated that she had taken all evidence into account. While she may well have done so there is no clue within the decision that the daughter's evidence was considered.
5. The daughter had provided a five page witness statement which she had adopted in oral evidence. The cross-examination recorded in the Record of Proceedings at the First-tier Tribunal was very limited and did not on the face of it challenge or undermine that evidence. The Appellant's claim for asylum was on the basis of a fear that her daughter would be subjected to a forced marriage on return to the IKR. The daughter had provided written evidence of the background facts that led her to conclude such marriage was in contemplation. She had provided an explanation as to why her mother (the Appellant) initially still intended to return to the IKR and what thereafter had prompted a change of mind and then the claim for asylum. Those were material matters that may, had the judge accepted them as credible, provided an explanation for actions taken by the Appellant which the judge had found adverse to her credibility. It is possible therefore that had the judge considered and accepted the daughter's evidence it could have had a material effect upon the outcome of the case.
6. It was in those circumstances that it was agreed by both representatives following a helpful skeleton produced from Mrs Jaquiss which distilled the germane points from earlier lengthy Grounds of Appeal that for the above reason a material error of law had been made requiring a fresh decision to be made in the First-tier Tribunal.

Notice of Decision
7. I find that a material error of law was made by the judge in the First-tier Tribunal and direct that the matter be remitted back to the First-tier Tribunal to make a fresh decision before a judge other than Judge Asjad.
8. An anonymity order is made.

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

Deputy Upper Tribunal Judge Lever