Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07026/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14th March 2017
On 15th March 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ZIADEDIN DELGOSHA
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Nath, Senior Home Office Presenting Officer
For the Respondent: Ms F Shaw, Counsel, instructed by Immigration Advice Service

DECISION AND REASONS

Introduction
1. The claimant is a citizen of Iran born on 26th August 1989. He arrived in the UK illegally in the back of a lorry on 15th January 2016 and claimed asylum the next day. His claim is based on his fear of persecution for distribution of material which was anti-Islam. His claim for asylum was refused on 24th June 2016. His appeal against the decision to refuse leave to remain on protection and human rights grounds was allowed by First-tier Tribunal Judge Sweet in a determination promulgated on the 9th January 2017.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Grant-Hutchinson on 26th January 2017 on the basis that it was arguable that the First-tier Tribunal had erred in law in relation to the translations of the UNHCR documents which had created arguable unfairness to the respondent in a number of respects and which led the First-tier Tribunal arguably to misdirect itself in a number of material ways.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.

Submissions – Error of Law
4. The Secretary of State’s grounds of appeal contend that the appeal was allowed by the First-tier Tribunal on the basis that it was contingent on some UNHCR documents being translated and confirming the claimant’s account and dates. However, it was also allowed on the day of the hearing, according to the date of the decision, and there is no post-script confirming that the translation was received and conformed to this requirement. Secondly the Secretary of State contends that failing to allow the Secretary of State time to comment on the translations before making the final decision was procedurally unfair. Thirdly the First-tier Tribunal placed undue weight on the decision of UNHCR which could have been made on a different basis to the Secretary of State’s legal basis, see R (Hoxha) v Special Adjudicator [2005] UKHL 19. Fourthly it was irrational to make a decision to allow the appeal without the translation. Fifthly the First-tier Tribunal failed to engage with the reasons given by the Secretary of State that the claimant was not a refugee set out at page 7 of the reasons for refusal letter.
5. Ms Shaw argued that the decision, whilst not perfect, gave the right answer particularly when the Court of Appeal decision in MM (Iran) v SSHD and the UNHCR Intervener [2010] EWCA Civ 1457 was considered. The translations were in fact sent to the First-tier Tribunal on 19th December 2016, and so three weeks prior to the promulgation of the decision. Given this chronology it could be assumed that they had therefore been received and read by Judge Sweet before the decision was made despite the date of decision being recorded as 13th December 2016.
6. I told the parties that I found that the First-tier Tribunal had erred in law, and would set out my reasons in writing. It was submitted by both parties that it was appropriate for this matter to be remitted to the First-tier Tribunal for a rehearing due to the extent of the remaking and the fact that there had not been a fair hearing. I agreed with these submissions.

Conclusions – Error of Law
7. It was an error of law for the First-tier Tribunal to have refused to have adjourned the hearing so that translations of the UNHCR documents could have been obtained. Both the representative for the Secretary of State and that of the claimant applied for this to happen, and the documents were clearly seen by the First-tier Tribunal as highly important to the appeal. It was irrational to have decided that the documents from UNHCR were so important that they were determinative of the appeal and to have allowed the appeal on the basis of them without translation. It was also procedurally unfair to have allowed the appeal on the basis of translations not provided to the Secretary of Secretary of State without an opportunity for her to comment on these. The decision further errs in law by failing to deal with the reasons for refusal and explaining why the UNHCR documents meant that the claimant had satisfied the lower standard of proof.
8. It was agreed by Mr Nath that he would ensure that the appellant’s file was sent to the relevant case-working group to ensure that the case would be reviewed prior to any new hearing in the First-tier Tribunal given the fact that the UNHCR documents now had appropriate translations to accompany them; given that the respondent had herself requested a report from UNHCR with details of the grant of refugee status which should have been received in January 2017; and in light of what is said by the Court of Appeal in MM (Iran). In the event that this matter proceeds to another appeal hearing it is clearly right that any report the respondent has received from UNHCR should be served on the appellant well in advance of that hearing.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision with no findings preserved.
3. I remit this appeal to the First-tier Tribunal to be remade.

Signed: Fiona Lindsley Date: 14th March 2017
Upper Tribunal Judge Lindsley