Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08645/2017

THE IMMIGRATION ACTS

Heard at Field House
On 17 October 2018
Decision & Reasons Promulgated
On 7 November 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

MR V W
(anonymity has been directed)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Walsh, Counsel for Luqmani Thompson & Partners Solicitors, London
For the Respondent: Mr Whitwell, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka born on 6 July 1974. His asylum appeal was refused on 30 December 2011 and the appeal was heard by Immigration Judge Grant on 22 March 2012 and was dismissed on all grounds. The appellant chose to remain in the UK illegally and lodged further submissions which the respondent decided amounted to a fresh claim. The further submissions appeal was heard by Judge of the First-tier Tribunal Geraint-Jones QC on 19 April 2018 and was dismissed on all grounds in a decision promulgated on 11 May 2018.

2. An application for permission to appeal was lodged and permission was granted by Deputy Upper Tribunal Judge Taylor on 18 September 2018. The permission states that the grounds make a number of detailed criticisms of the Judge's approach to the decision making process in this case, in relation to his consideration of the relevance of the fresh claim, the standard of proof which he applied, his recording of the appellant's case and a failure to refer to objective evidence. The permission states that all of these may be argued.

3. There is no Rule 24 response.

The Hearing

4. The grounds of appeal state that the First-tier Tribunal Judge acted outside his jurisdiction by remaking the respondent's 2017 decision to accept the appellant's submissions as a fresh claim. The Judge rejected the claim and on that basis refused to depart from the findings of the previous Tribunal. The respondent had made the decision that it was a fresh claim because the appellant's brother-in-law, on the same facts as the facts in this appellant's claim has been granted refugee status in the United Kingdom. I asked for submissions relating to the power, if any, of the First- tier Tribunal Judge to remake the Respondent's decision.

5. Although this is the appellant's appeal the Presenting Officer submitted that the Judge acted outwith his jurisdiction but submitted that this is not necessarily a material error of law although it is an error of law. He submitted that the Judge was careful to say that there was no reasoned decision of the respondent and it is not clear why the fresh claim was accepted as such. He submitted that the Judge is entitled to his own view but the error in this case is only material if it adversely affects the decision of the Judge, and he submitted that the Judge directed himself appropriately, in particular relating to the case law.

6. He submitted that the Judge has rejected the fresh claim and stated that there is therefore no right of appeal. The Presenting Officer referred to paragraph 47 of the decision in which the Judge refers to the statement given by the appellant's brother-in-law Mr S. The Judge states that he is surprised that the evidence that the appellant's brother-in-law has been granted refugee status was not before the Tribunal Judge at the first hearing but when the chronology is considered it is clear that the brother-in-law's claim was made after the First-tier Tribunal's hearing in this claim.

7. Counsel made his submissions referring me to the respondent's bundle which contains medical evidence on the appellant's brother-in-law. This arrived after the appellant's First-tier hearing. This medical evidence refers to the Appellant's brother-in-law having scars, burns etc and he submitted that clearly the Judge did not realise that the brother-in-law came to the United Kingdom and received his decision after our appellant's claim had been decided.

8. Counsel submitted that the Judge was acting outwith his jurisdiction. The respondent decided that there is a fresh claim and he submitted that if the appellant is returned, his brother-in-law's activities and the fact that he has been granted refugee status in the UK, may well put the appellant in danger when he arrives at the airport in Sri Lanka. I was asked to consider the detailed statement of the appellant's brother-in-law in the respondent's bundle and the appellant's statement made two years ago in which he refers to his brother-in-law being in one of the camps in Vavuniya, in Sri Lanka and having no one to help him. The appellant stated that he had to go to Vavuniya to the camp to meet his sister, (this brother-in-law's wife) and then had to return a month later with clothes for his sister and some money. He mentions his brother-in-law in this statement and the fact that his brother-in-law was in the LTTE. Counsel submitted that because the appellant had helped his brother-in-law the authorities thought the appellant was involved in the LTTE as well and it is clear that there is a link between the appellant and his brother-in-law and that link was first referred to two years ago and before the appellant's hearing in 2018.

9. Counsel submitted that for the Judge to say that there was no mention of the appellant's brother-in-law in his evidence is not true and the fact that he has been granted refugee status cannot be put to one side. He submitted that the First-tier Tribunal Judge did put it to one side. Counsel submitted that at paragraph 8 of Judge Geraint- Jones' decision he states that he will not be revisiting the facts set out by Judge Grant and considering them afresh. He goes on correctly, to disagree with the appellant's representative when she states that every fact alleged by the appellant's brother-in-law must be found in the appellant's favour. Counsel submitted that this is a mischaracterisation of the appellant's claim. Immigration Judge Grant's decision cannot be ignored, it must be the starting point when assessing the credibility of the fresh claim. Reference is made in the decision, to Counsel asking Judge Geraint-Jones to recuse himself as the Judge appeared to have made up his mind on the issues of the case before having had a chance to consider them. Counsel at this hearing submitted that the Judge clearly narrowed his view very early on in the case and that paragraph 15 of the decision cannot be correct. The Judge states that the appellant is seeking a second bite of the cherry, not on the basis of new primary facts, but on the basis of seeking to challenge the findings of fact which he has previously failed successfully to challenge on appeal. Counsel submitted that that is what the appellant is doing but he is entitled to do that as the respondent has decided that there is a fresh claim. He submitted that the starting point is the first decision. The appellant is still asserting that he should be granted refugee status.

10. I was referred to paragraph 20 of the decision. Counsel submitted that the standard of proof referred to therein is too high and at paragraph 22 the standard of proof, being used by the Judge is too high.

11. I was referred to paragraph 35 of the decision which refers to Professor Good's second report to which the Judge gives no weight. This is because the Judge does not accept that there is a fresh claim. Counsel submitted that there is clearly a fresh claim as only the respondent can make that decision and that Judge Grant's decision must be the starting point in Judge Geraint-Jones' decision. This is not how Judge Geraint Jones dealt with the matter.

12. I was referred to the case of Devaseelan at paragraphs 25 and 26. Counsel submitted that there is no good reason to depart from the findings in Devaseelan. He submitted that because of the way the First-tier Judge dealt with this case he reached a different decision to that which might well have been reached by a different Judge. He submitted that there is a material error of law in Judge Geraint-Jones' decision.

13. Counsel submitted that it is clear from paragraph 42 onwards that the Judge has made up his mind about how he is going to decide the claim. This is before he has considered the rest of the evidence. Articles 2 and 3 had still to be considered at this stage. Counsel submitted that Judge Geraint Jones did not follow the correct procedure. I was referred to the respondent's bundle, in particular the facts therein about the appellant being detained after he was suspected of helping to get his brother-in-law's and his sister's release. He submitted that Professor Good's expert report should have been given weight as it is logical and deals with the issues in the claim. Much of the report supports the appellant's evidence but what Judge Geraint Jones states is that he does not believe what the appellant states. Counsel submitted that a new assessment should have been made by the Judge. He also referred to the Judge commenting that the appellant's sister and brother-in-law would have been unlikely to survive the fighting in Vavuniya but Counsel submitted that many Tamils did survive and were put into IDP camps, so the judge has clearly reached a wrong conclusion. The Judge also finds that the appellant is unlikely to have been able to visit his sister but the expert states that family visits were permitted. He submitted that the expert report is consistent with the appellant's evidence and the appellant's brother-in-law's escape from prison and his description of how it happened could, according to the expert, have happened in this way.

14. Counsel submitted that Professor Good's second report should have been given weight and should not have been sidelined by the Judge as inadmissible.

15. The Presenting Officer submitted that the Judge was not obliged to go behind the previous findings and that Judge Geraint Jones refers to Devaseelan at paragraphs 40 and 41 of his decision but finds that no new facts have been presented or proved and he submitted that this justifies him departing from the established starting point.

16. He submitted that the fresh claim issue is purely a red herring and is not material. The Judge clearly believes that this appellant will not be at risk on return to Sri Lanka.

17. Counsel submitted that at paragraphs 40 and 41 when the Judge states that he will not be taking the First-tier Tribunal decision as his starting point this must be an error of law. He submitted that the Judge has taken the wrong route and has made his decision without an open mind.

18. He asked to me to find that there is a material error of law in the Judge's decision and that the claim should be remitted to the First-tier Tribunal for rehearing.

Decision and Reasons

19. The respondent has found that the fact that he appellant's brother-in-law has been granted refugee status is sufficient for this appellant's claim to be considered as a fresh claim particularly as the appellant referred to his brother-in-law in his previous statements and explained how he helped his sister and brother-in-law and that is why he was arrested and badly treated. It is not for the Judge to decide that there is no fresh claim and that is what the Judge has done in this case.

20. Because he has done this he has approached the case in the wrong way. He has stated at paragraph 41 that he is justified in departing from the established starting point.

21. This is an error and the Judge has acted outwith his jurisdiction.

22. There is also an error of law as it is clear that the Judge made up his mind what his decision was going to be before he considered Articles 2 and 3 of ECHR. All the facts in the case have to be considered in the round and the Judge has not done this. The Judge has dealt with this claim with a closed mind. Because of this and because he has acted outwith his jurisdiction there must be a material error of law in the decision.

Notice of Decision

As I find that there are material errors of law in the Judge's decision I direct that the decision of the First-tier Tribunal is set aside. None of its findings are to stand other than as a record of what was said on that occasion. 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 First-tier Tribunal for an entirely fresh hearing.

The members of the First-tier Tribunal chosen to consider the case are not to include Judge of the First-tier Tribunal Warren Grant or Judge of the First-tier Tribunal Geraint Jones.

Anonymity has been directed.

Signed Date 30 October 2018

Deputy Upper Tribunal Judge IAM Murray