PA/05598/2016

• Status of case: Unreported
• Hearing date: 28 Mar 2017
• Promulgation date: 29 Mar 2017
• Publication date: 22 Mar 2022
• Last updated on: 22 Mar 2022

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: PA/05598/2016


THE IMMIGRATION ACTS


Heard at North Shields
Decision & Reasons Promulgated
On 28 March 2017
On 29 March 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES


Between

S. K.
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms Soltani, Solicitor, Iris Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer


DECISION AND REASONS
1. The Appellant says that he is a citizen of Iran who left that country in 2015 on foot for Turkey, and who then entered the UK illegally in November 2015. He made an application for protection on 9 December 2015.
2. The Respondent refused that application on 19 May 2016, and the Appellant’s appeal to the First tier Tribunal [“FtT”] against that decision was heard on 26 October 2016. It was dismissed on all grounds, in a decision promulgated on 28 November 2016 by First Tier Tribunal Judge Robson.
3. The Appellant was granted permission to appeal that decision on 19 December 2016 by First tier Tribunal Judge Adio on the basis it was arguable the Judge had failed to properly explain why he had preferred the evidence of two social workers to that of a consultant paediatrician when considering the disputed issue of the Appellant’s age.
4. The Respondent filed a Rule 24 Notice dated 11 January 2017 in relation to the grant of permission to the Appellant, in which she stated that she opposed the grant of permission, and invited the Upper Tribunal to conclude that it was open to the Judge to conclude that the Appellant was not the child he claimed to be.
5. Thus the matter comes before me.
Error of Law?
6. The Appellant’s case is that if the Appellant told the truth about his age, then the weight given to his evidence needed to be assessed in that light. Thus the error of law asserted is said to go to the heart of the Judge’s assessment of credibility. That assessment is so flawed, it is argued, that a set aside of the decision and the remittal of the appeal to the FtT for rehearing de novo is the only course.
7. The Respondent accepted before me that the opinion evidence of the consultant paediatrician was credible, cogent, and specific to the central disputed issue of the Appellant’s age. Moreover it was based upon a bone analysis, to which the Respondent had offered no answer, and which was not therefore in dispute. Thus it is accepted that the Judge was at least required to offer an explanation as to why he preferred the opinion evidence of two social workers, based as it was upon the Appellant’s physical appearance and demeanour. It is accepted that the decision does not provide such an explanation – the bald statement that the evidence of the social workers is preferred over that of the consultant is all that the decision contains [48].
8. In the circumstances both parties were agreed before me that the decision discloses a material error of law that renders the dismissal of the appeal unsafe, and that the decision must in the circumstances be set aside and remade.
9. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, or whether to proceed to remake it in the Upper Tribunal. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision is set aside, and the appeal is remitted to the First Tier Tribunal for rehearing. The appeal is not to be listed before Judge Robson.
ii) A Kurdish Sorani interpreter is required for the hearing of the appeal.
iii) There is anticipated to be only one witness, and the time estimate is as a result, 3 hours.
iv) It is not anticipated by either representative that there is any further evidence to be filed, and thus the appeal may be listed at short notice as a filler on the first available date at the North Shields hearing centre after 17 April 2017 for final hearing. No further Directions hearing is presently anticipated to be necessary. Should either party anticipate this position will change, they must inform the Tribunal immediately, providing full details of what (if any) further evidence they seek to rely upon.
v) The Anonymity Direction previously made by the First Tier Tribunal is preserved.
Decision
10. The decision promulgated on 28 November 2016 did involve the making of an error of law sufficient to require the decision to be set aside and reheard. Accordingly the appeal is remitted to the First Tier Tribunal with the directions set out above.


Deputy Judge of the Upper Tribunal JM Holmes
Dated 28 March 2017