The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07345/2017


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 20 April 2018
On 30 April 2018



Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE


Between

U Y
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr R Wilcox (counsel) instructed by Buckingham Legal Associates
For the Respondent: Mr T Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS

1. To preserve the anonymity direction deemed necessary by the First-tier Tribunal I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Phull promulgated on 12 October 2017, which dismissed the Appellant's appeal on all grounds.

Background

2. The Appellant was born on 3 March 1986 and is a national of Pakistan. The appellant entered the UK on 2 September 2010 as a student. The appellant claimed asylum on 23 January 2017. On 21 July 2017 the Secretary of State refused the Appellant's protection claim.

The Judge's Decision

3. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Phull ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 29 January 2018 Upper Tribunal Judge Plimmer gave permission to appeal stating

1. As contended in the grounds, there has been an arguable failure to take into account evidence as to how the appellant's brother may have come to know about the appellant's sexuality.

2. Some grounds of appeal are stronger than others, but as the grounds challenging the credibility findings are linked, all grounds are arguable.

The Hearing

4. (a) For the appellant, Mr Wilcox moved the grounds of appeal. He told me that the thrust of the grounds of appeal was a challenge to the Judge's findings on credibility. He told me that the Judge's findings are tainted by a mixture of speculation and a failure to properly consider the evidence. He told me that the decision demonstrated a lack of care from the Judge and a reversal of the burden of proof.

(b) He took me to [29] of the decision, and told me that the Judge's conclusions are entirely unsafe and can be read as a finding that the background materials indicate that there are no discrete, gay men in Pakistan. He then took me to [13] and told me the Judge relies on plausibility; he argued that the Judge failed to take proper account of the evidence. He told me that if the Judge had considered paragraph 55 of the appellant's witness statement she would have been unable to reach the conclusion she did.

(c) Mr Wilcox took me to [31] and [32] of the decision. He told me that the Judge has failed to understand the evidence. He told me that if the Judge had taken account of paragraph 35 of the appellant's witness statement she would not have made the finding at [31]. He dwelt on [32] of the decision where the Judge says that there is no evidence on crucial part of the appellant's case, when in fact that evidence is summarised at [14] of the decision.

(d) Mr Wilcox moved to [33] of the decision, where the Judge finds that the appellant cannot explain what is depicted in one crucial photograph. He told me that the appellant explained in cross-examination that the picture depicted him with no clothes on. Mr Wilcox said that the findings at [34] are unsustainable because one witness had come to speak for the appellant and because the appellant explains that other witnesses were reluctant to come to court because of the nature of the evidence they were asked to give.

(e) Mr Wilcox moved to the final paragraphs of the decision and told me that in the final sentence of [36] and the first sentence of [37] the Judge reverses the burden of proof. He urged me to set the decision aside and to remit this case to the First-tier to be determined of new.

5. (a) For the respondent, Mr Lindsay told me that the decision does not contain errors of law, material or otherwise. He told me that the Judge carried out an assessment of credibility which is beyond criticism between [29] and [37] of the decision. He placed emphasis on [30], [31] and [33] of the decision and told me that the Judge reached conclusions supported by evidence and that the conclusions were reasons well within the range of conclusions available to the Judge.

(b) Mr Lindsay told me that the absence of an explicit adverse credibility finding for the appellant's witness was a matter which is entirely neutral, because the Judge finds that the appellant's witness' evidence did not advance the case. He told me that the Judge does not rely on speculation that gives adequate reasons for findings. He urged me to dismiss the appeal and allow the decision to stand.

Analysis

6. At [33] of the decision the Judge is critical of the appellant for failing to give specific evidence about the nature and significance of the photograph he sent to his former boyfriend in 2005. The Judge says

I find he was unable to explain in cross-examination how people would find out from this picture that it referred to their sexuality.

7. I have the benefit of the Judge's record of proceedings. According to the Judge's own record of proceedings the 13th question the appellant was asked was

What was in the pictures?

He answered

I was in them, of sexuality, totally nude.

8. The Judge's record of proceedings indicates that the appellant explained what the photograph contained and why people would view it as an expression of sexuality. The record of proceedings completely undermines the Judge's findings at [33].

10. The Judge's findings really start at [29] of the decision. The Judge starts his findings by saying that she does not find that the appellant is a bisexual, and that she will set out her reasons. At [29] the Judge finds part of the appellant's account of visiting the same hotel repeatedly as implausible. At [32] the Judge says that she does not find the appellant's account to be credible. In the final sentence of [32] the Judge once again relies on plausibility.

11. In the final sentence of [36] the Judge finds that the appellant does not want to return to Pakistan, so that he can work and pay off his debts. It is not clear what the evidential basis for that finding is. In the first sentence of [37] the Judge applied the wrong standard of proof. It would be necessary to rearrange the order of the works the first sentence of [37] to demonstrate that the correct standard of proof is applied.

12. The net effect is that the decision is untidy and unclear. [33] of the decision is based on inaccurate recollection of the evidence that was given. [33] contains such a significant error of fact that it is a material error of law. The Judge's credibility assessment is undermined and cannot stand. At [32] the Judge bemoans a lack of evidence, but at [14] the Judge rehearses the very evidence which she says does not exist. As a result, the decision contains material errors of law and has to be set aside.

13. As the decision is tainted by material errors of law I must set it aside. I am asked to remit this case to the First -tier. I consider whether or not I can substitute my own decision, but find that I cannot do so because of the extent of the fact-finding exercise necessary.
Remittal to First-Tier Tribunal
14. 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.
15. 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.
16. I remit this case to the First-tier Tribunal sitting at Birmingham to be heard before any First-tier Judge other than Judge Phull.

Decision
17. The decision of the First-tier Tribunal is tainted by material errors of law.
18. I set aside the Judge's decision promulgated on 12 October 2017. The appeal is remitted to the First-tier Tribunal to be determined of new.


Signed Paul Doyle Date 26 April 2018

Deputy Upper Tribunal Judge Doyle