Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05705/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd March 2018
On 02nd May 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

y T
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Ms Z Ahmad, Home Office Presenting Officer
For the Respondent: Mr A Gilbert (Counsel)

DECISION AND REASONS
1. YT is a citizen of Russia whose date of birth is recorded as 10th March 1993. She claimed international protection as a refugee on the basis of her sexual orientation.
2. On 26th May 2017 a decision was made against which she appealed. The appeal was heard by Judge of the First-tier Tribunal Dineen sitting at Hatton Cross on 6th October 2017. He allowed the appeal. He made two significant findings, which one might expect in the case of this nature, firstly that it was made out that YT was a lesbian and secondly that she together with her child may be seen to be promoting homosexuality in Russia and therefore be at risk of persecution.
3. Not content with that decision the Secretary of State by Notice dated 18th December 2017 made application for permission to appeal to the Upper Tribunal. The grounds are rather lengthy but in substance the complaint was made that: Judge Dineen had had insufficient regard to the findings of Judge Walters in an earlier decision; had failed properly or at all to apply the principles in Devaseelan; and that there was no sufficient basis for the finding in any event that the Appellant would be at risk from return to Russia.
4. On 17th January 2018 Judge of the First-tier Tribunal Andrews granted permission thus the matter comes before me. Although Mr Gilbert did not concede the appeal he recognised the difficulties in the decision of Judge Dineen as identified the grounds. Although Judge Dineen does make reference to the previous determination of Judge Walters at paragraph 43, and more particularly at paragraph 61, it is not clear from reading the decision as a whole the extent to which, if at all, Judge Dineen took the earlier findings as the starting point as required in the case of Devaseelan. It is trite law to say that a second judge is not bound ultimately by the findings of the earlier judge but he or she is required to take it as a starting point and give sufficient reasons as to why he or she has then departed from it. It may be that Judge Dineen was of the view that the evidence of Mr Lane was sufficient. I do not know. It is not sufficiently clear, but any party to proceedings is entitled to know why they have lost. That applies as much to the Secretary of State as it does to any individual private person coming before a court or Tribunal.
5. The second concern that I have with this decision, and error of law that I find, is that at paragraph 75 Judge Dineen says:
"I find that there is a real risk that a gay woman living as a single mother may find herself accused of promoting homosexuality."
I simply do not understand how that link has been made and I do not understand the word "may" taken together with real risk, either there is a real risk or there is not one.
6. Thirdly, there is no sufficient analysis of the guidance in the case of HJ (Iran) which helps a judge in his or her approach to issue such as discretion by persons who are gay.
7. It follows that the decision of Judge Dineen falls to be set aside because of the errors of law that I have identified pursuant to the grounds. I can remake the case or remit depending on the circumstances but it seems to me that this is the case in which findings of fact need to be made again. Both parties agree that that is the proper course.
8. I am mindful of the requirements of Section 55 of the 2009 Act and the fact that there is a child affected by the outcome in these proceedings. It is not clear from the evidence whether the child is in fact a British citizen. That the father of the child is not named on the birth certificate and irrespective of the merits of the international protection claim, the nationality of the British child may give rise to derivative rights under European law. I know not but it needs to be looked at. I have indicated that it would be helpful to the First-tier Tribunal to have DNA evidence of the child and the child's father if it is contended that the child's father is a British citizen because if so the child would be a British citizen and if there are questions of funding then I make it clear that the view of the Upper Tribunal is that funding should be provided in order to obtain that DNA evidence. I cannot direct it.
9. I have also observed that it may be that the First-tier Tribunal would wish to see rather more evidence in support of the contention of YT that she is gay. The evidence of Mr Lin is of course capable of being corroboration but applying the principles in TK (Burundi) [2009] EWCA Civ 40 to which the Secretary of State has made reference in the grounds there may be some merit, I put it no higher, in the concerns of the Secretary of State as to the lack of evidence placed before the Tribunal. That of course will be a matter for the judge that hears the case once it is remitted.
10. If the case in the First-tier Tribunal is to be based upon in part the nationality of the child then it may be that that is a "new matter" within the post 2014 legislative framework and would require the consent of the Secretary of State, in the First-tier Tribunal, if it is to be pursued. It follows that any DNA evidence being relied upon should be filed and served as soon as it reasonably practicable and the Secretary of State should take a view on that in advance of the hearing of the First-tier Tribunal. Provided that that evidence is provided in sufficient time it may be that failure to consider it would be grounds for the First-tier Tribunal to consider a wasted costs order against the Secretary of State. There is a benefit to proper consideration being given to all matters in advance of any hearing.

Notice of Decision

The decision of the First-tier Tribunal contains material errors of law and is set aside. The matter is remitted to Hatton Cross to be heard by a judge other than Judge Dineen. For the avoidance of doubt no facts are preserved other than nationality and date of birth which are not in issue.

The anonymity order made by the First-tier Tribunal is maintained.

Signed Date: 1 May 2018
Deputy Upper Tribunal Judge Zucker