Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06226/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 5 April 2017
On 7 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

GASTEL [E]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Ethnic Minorities Law Centre
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, born on 13 April 1977, is a citizen of the Republic of Congo (often referred to as Congo Brazzaville, to distinguish it from the Democratic Republic of Congo, the capital of which is Kinshasa, on the other side of the river).
2. The appellant came to the UK as a student in 2003 and had various forms of leave until 2009. In October 2011, he was served with notice as an overstayer. Various appeals and procedure followed. Having been detained on 1 December 2015, he made an asylum claim on 4 December 2015.
3. The respondent’s reasons for refusing the claim are in annex A to a letter dated 1 June 2016. The appellant’s involvement since 2009 with the organisation UK Friends of Congo Brazzaville was held not to place him at risk (¶16-40). The appellant also said that in 1999 he was seriously injured during an incident of mass murder by a militia and thereafter detained by police. The respondent found his evidence about this unclear, inconsistent and confused; noted that he failed to explain why it might give rise to any interest in him after such a long time (¶53), and declined to accept that the incident occurred as claimed (¶41-56). The delay in the claim was found adverse to credibility under s. 8(2) of the 2004 Act, particularly as the appellant had been asked in July 2015 for all further reasons for remaining in the UK (¶57-63).
4. FtT Judge S Gillespie dismissed the appellant’s appeal by decision promulgated on 16 November 2016.
5. The grounds of appeal are rather prolix. They may be summarised thus:
(1) Error re expert report: (i) and (ii) not taking account of expert’s view that the authorities would see membership of UK Friends of Congo Brazzaville as an expression of political opinion; (iii) even if undertaken in bad faith, sur place activities may ground protection.
(2) Misapprehension or misunderstanding of the evidence: the judge thought the appellant remained in Congo Brazzaville from 1999 until 2003, but he returned for only part of that period.
(3) Errors in relation to historical events: the same party remains in power, so past events are the best indicator of risk.
(4) Error assessing the summons: no explanation for finding an absence of a cogent account following the issue of the summons.
(5) Failure to act in a fair manner: error by not adjourning ex proprio motu for a witness to attend.
(6) Looking for corroboration at ¶55: there is no onus to produce corroboration; separatim, the judge should have adjourned for the witness to give evidence.
6. Mr Matthews said that while no concession was made as to the weight the expert report ought to have carried, it was accepted that ground 1 discloses error of law in that the report was potentially capable of bearing on the outcome, but the judge essentially left it out of account, and gave no adequate reasons for declining to give it any weight.
7. Representatives agreed that in that light, the outcome should be as follows.
8. The decision of the FtT is set aside. None of its findings stand, other than as a record of what was said at the hearing.
9. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
10. The member(s) of the FtT chosen to consider the case are not to include Judge S Gillespie.
11. No anonymity direction has been requested or made.

4 April 2017
Upper Tribunal Judge Macleman