Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07917/2019

THE IMMIGRATION ACTS

Heard remotely via Skype for Business
Decision & Reasons Promulgated
On 31 March 2021
On 13 April 2021

Before

UPPER TRIBUNAL JUDGE LANE

Between

CESM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Katani
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a male citizen of El Salvador who was born in 1998. He entered the United Kingdom in April 2019. His claim for international protection was refused by the Secretary of State by a decision dated 5 August 2019. The appellant appealed to the First-tier Tribunal which, by a decision promulgated on 24 October 2019, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. I find that the First-tier Tribunal has erred in law such that its decision falls to be set aside. My reasons for so finding are as follows. The judge accepted that the appellant had been threatened by a gang in October 2018. He did not accept that the appellant had been threatened again in 2019. At [42], the judge noted that the appellant had lived the first 20 years of life in El Salvador without serious incident save for the threat in 2018 and that his family continued to live in the country, apparently unmolested. The problem with the judge's analysis is that expert evidence adduced by the appellant raised difficulties which the appellant would be reasonably likely to meet on return which the judge has not addressed and an expert opinion on those difficulties which the judge has given no reason for rejecting. It was the appellant's case, based in part on the evidence of his expert, that he would have problems travelling safely through the country from the airport to his home area because of the presence of gangs who would be likely to stop, interrogate and possibly harm him. At [30] the judge states that he has considered the expert report 'very carefully' and notes at [31] that other objective evidence recorded that gang members would stop and question strangers passing through 'their area'. However, the judge has not considered this evidence (the relevance of which did not rely upon the judge accepting the entirety of the appellant's account) in determining risk on return. Moreover, it does not follow that, because the appellant had lived in the past in his home area without serious incident, he would now, having left it, be able safely to return. In consequence, the judge's analysis is incomplete and the appellant has not been given adequate reasons to explain why his appeal was unsuccessful.
3. I set aside the decision. I do not find that the error which I have described above has vitiated the findings of fact reached by the Tribunal. In particular, I find that the findings at [19], [33], [34], [35-41] shall stand. I am aware that 18 months have elapsed since the First-tier Tribunal hearing and I am satisfied that the Tribunal which remakes the decision should be able to hear evidence which updates the appellant's circumstances and those pertaining in El Salvador (a CPIN is now available which the judge in 2019 did not have the benefit of considering). Accordingly, I return the appeal to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo. I give listing instructions in bold type below.
Notice of Decision
The decision of the First-tier Tribunal is set aside. The findings detailed in my decision at [3] above shall stand. The parties may adduce fresh evidence provided copies of any documentary evidence (including witness statements) are sent to the other party and to the Tribunal no less than 10 days before the next hearing.

Listing Instructions: Return to First-tier Tribunal for de novo hearing; Glasgow; first available date; First-tier Tribunal to determine whether hearing shall be remote or face to face; Not Judge McGrade; Spanish (Latin American) interpreter; 2 hours.

Signed Date 31 March 2021
Upper Tribunal Judge Lane

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.