Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05457/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 20th March 2018

On 2nd May 2018

Before

Upper Tribunal Judge Chalkley

Between

[N A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Colin Yeo of Counsel, instructed by Migrant Legal Project (Cardiff)
For the Respondent: Mr Irwin Richards, a Senior Home Office Presenting Officer

REASONS FOR FINDING AN ERROR OF LAW

1. The appellant is a citizen of Afghanistan who claims his date of birth is [ ] 2000. He says that he entered the United Kingdom in about June or July 2015 and claimed asylum on 8th October 2015.

2. The appellant's application was refused, but he was assessed to have been born on [ ] 1999 and was granted discretionary leave to remain until 10th June 2017. Before the expiry of his discretionary leave, the appellant requested the Secretary of State to recognise him as a refugee. In a letter dated 6th May 2016, the respondent refused to grant the appellant refugee status. The appellant appealed the decision and his appeal was heard by First-tier Tribunal Judge Grimmett in Birmingham on 16th March 2017.

3. The appellant's claim was largely misbelieved by the judge and his appeal was refused. In granting permission Upper Tribunal Judge Lindsay said this:
"3. The grounds of appeal contend, in summary, that firstly that the First-tier Tribunal failed to consider any country guidance decisions, but particularly AA (unattended children) Afghanistan CG [2012] UKUT 16 and AK (Afghanistan) and others [2012] EWCA Civ 1014. Secondly, the First-tier Tribunal failed to properly consider the appellant's age and mental health when assessing his credibility. No reference was made to the evidence of his psychiatrist, social worker or foster carer about his fragile mental health but only to the prior evidence of the educational psychologist. There was no reference to the Joint Presidential Guidance Note No 2 of 2010 on children and vulnerable adults. Thirdly, the appellant contends that undue weight was given to the screening interview notes as to whether the appellant's father was alive and to ambiguous questioning on this point, when all other records state that he died. Furthermore, it is contended that the hearing was procedurally unfair. The respondent withdrew a concession that the appellant had been previously recruited by the Taliban on the day of the hearing, and this prejudiced the appellant as he had not been given the opportunity to provide evidence on this issue. It is accepted that this was an error of Counsel not to apply for an adjournment, but the appellant should not be fixed with this error, FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13. This was a significant issue which affected credibility findings against the appellant. Fifthly there was a failure to consider whether the appellant could safely access his home area, and also properly reason the decision on whether he would be met at the airport and would receive adequate reception conditions, and in turn failed to look at the Home Office guidance on processing asylum claims on reception conditions - a document which the Presenting Officer ought to have drawn to his attention as per UB (Sri Lanka) v the Secretary of State for the Home Department [2017] EWCA Civ 85."
4. In addressing me, Mr Yeo told me that he had no instructions on the significance of the withdrawal of the concession by the Secretary of State. The Secretary of State appeared to have written to the Tribunal and to the appellant's solicitors two days before the hearing, but the appellant's solicitors had never received any such letter and it was not until the day of the hearing that the appellant and his advisors became aware that the concession was withdrawn.

5. The appellant was born in 2000 or in 1999 and arrived in June 2015, aged either 14 or 15. The events which the appellant recounted took place much earlier. The judge made no allowance at all for the age of the appellant when the events he related occurred at a much earlier time in his life and the judge showed no awareness of the Joint Presidential Guidance Note No 2 of 2010.

6. Mr Yeo submitted that one of the most notable omissions was the failure by the judge to refer to AA or to Article 15(c). There had been a failure by the judge to grapple with paragraph 276ADE(vi) and no consideration at all of the psychiatric evidence or of the oral evidence of the foster carer and the oral evidence of the teacher who appeared before the judge.

7. Mr Richards suggested that there was no material error of law. The late concession was not actually withdrawn on the day of the hearing, it was drawn two days before the hearing and faxed copies of the letter were sent to the Tribunal and to the appellant's solicitors. The credibility findings made by the judge were ones which, on the evidence, were open to her. He asked me to uphold the decision.

8. This appellant was no more than 15 years of age when he arrived in the United Kingdom. He could not have been more than 16 years of age when he was interviewed in connection with his claim. However, there appears to be no recognition of the appellant's vulnerability by the judge before considering the evidence before her. When she did consider the evidence, she failed to consider the psychiatric report and the oral evidence of the appellant's long-term foster carer and the oral evidence of the appellant's English teacher, Ms Booth.

9. It is not possible for me to know whether the late withdrawal of the concession by the Secretary of State would have had any impact at all on the appeal, because Counsel was without instructions on the point. Nonetheless, that aside, I am satisfied that there are errors of law in this determination such that no part of it can stand. I set it aside in its entirety.

10. Given the lengthy delays that can occur when part-time judge's reserve cases to themselves, I have decided not to reserve this to myself in the Upper Tribunal, but instead to remit this appeal for hearing afresh by a Judge of the First-tier Tribunal other than Judge Grimmett.

11. I would respectfully suggest that two and a half hours should be allowed for the hearing of the appeal.

Richard Chalkley
Upper Tribunal Judge Chalkley Date: 28th March 2018