Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06364/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 6 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SAEED KHEDER KHAZRI
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C McGinley of Gray & Co
For the Respondent: Mr A Mullen Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge McGrade promulgated on 22 November 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 2 April 1991 and is a national of Iran.

4. On 8 June 2016 the Secretary of State refused the Appellant’s protection claim.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge McGrade (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 30th January 2017 Designated Judge Shaerf gave permission to appeal stating

The first ground of appeal asserts that the Judge erred in rejecting the appellant’s claimed Iranian nationality and gave insufficient reasons to support his conclusion. The second ground asserts that the Judge failed properly to consider the appellant’s claim, having rejected his claim to be Iranian.

As to nationality, the Judge did not address the information contained on page I.7 of the respondent’s bundle referring to the 13th day of the New Year festival called Sizdah Bedar. He did not put his findings in the context of the appellant saying his occupation was that of a cross-border smuggler and he joined the KDPI when in Iraq.

Even if the Judge found that the appellant was not Iranian, he was required to assess the appellant’s international surrogate protection claim. Under the regime brought in by section 15 of the Immigration Act 2014 and the amendments made to section 82 of the Nationality Immigration and Asylum Act 2002 the appeal was against refusal of the protection claim and not against any removal decision.

These are arguable errors of law and permission to appeal on both grounds is granted.

The Hearing

6. On 7 February 2017 the respondent served a rule 24 notice which concedes the appeal. The second paragraph of that notice says

The respondent does not oppose the appellant’s application for permission to appeal and invites the tribunal to determine the appeal with a fresh oral (continuance) hearing to consider whether the appellant qualifies as a refugee.

7. Mr McGinley, for the appellant, moved the grounds of appeal. Mr Mullen did not oppose the appeal. Both parties’ agents joined in a motion to have this case remitted to the First-tier to be determined on new.

8. It is now accepted that the Judge’s approach to determination of the appellant’s nationality is flawed. There was evidence placed before the Judge which the Judge does not address in the decision. The Judge’s decision concentrates entirely on the question of the appellant’s nationality. Inadequate reasons are given for rejecting the evidence produced by the appellant to support his claimed Iranian nationality. The Judge took nationality to be entirely determinative of the appellant’s claim and no consideration is given of the substance of the appellant’s protection claim.

9. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal’s decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.

10. I therefore find that the decision is tainted by material errors of law. A fuller fact finding exercise might have resulted in a different outcome to this appeal. I must therefore set the decision promulgated on 22 November 2016 aside.
11. I have already found material errors of law in the fact-finding process carried out by the First-tier in the decision promulgated on 22 November 2016. I therefore find that I cannot substitute my own decision because of the extent of the fact-finding exercise required to reach a just decision in this appeal.
Remittal to First-Tier Tribunal
12. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
13. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
14. I remit the matter to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge McGrade.

Decision
15. The decision of the First-tier Tribunal is tainted by material errors of law.
16. I set aside the Judge’s decision promulgated on 22 November 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 16 March 2017

Deputy Upper Tribunal Judge Doyle