Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08713/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th July 2019
On 06th August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

m m s
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Hawkin (Counsel)
For the Respondent: Mr L Tarlow (Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant is a citizen of Albania born on 7th September 1980. The Appellant has an extensive immigration history and was subject to a Notice of Refusal from the Secretary of State to applications on both February 2015 and January 2017. The latter constituted a review of further submissions on the original application. A further application was made and that was refused by Notice of Refusal dated 27th June 2018. Therein the Appellant claimed that she would be at threat of persecution returning to Albania as a single woman with children and that lack of protection from the Albanian authorities and internal relocation would not be an option.
2. The subject of the present Notice of Refusal came before Immigration Judge Khan on appeal at Harmondsworth on 26th October 2018. In a decision and reasons promulgated on 9th November 2018 that application was refused. Grounds of Appeal were lodged to the Upper Tribunal and on 30th January 2019 Upper Tribunal Chapman remitted the matter back to the First-tier Tribunal for rehearing. That rehearing came before First-tier Tribunal Judge Talbot sitting at Taylor House on 4th March 2019. In a decision and reasons promulgated on 1st May 2019 the Appellant's appeal was again dismissed.
3. On 9th May 2019 renewed Grounds of Appeal were lodged to the Upper Tribunal. On 30th May 2019 First-tier Tribunal Judge Bristow granted permission to appeal. At paragraph 3 of the grounds of permission Judge Bristow notes that there is a reference in the decision of 9th November 2018 at paragraph 17 to the decision that was set aside and refers to information therein as to the implausibility that the Appellant's cousin had not provided evidence or attended the hearing. On the basis that the decision of Immigration Judge Talbot had been set aside and the appeal remitted back to the First-tier Tribunal for a fresh hearing Judge Bristow considered that it was arguable that the judge in referring to the decision made an error of law and that the error was material to the outcome of the appeal. Permission on all grounds was allowed.
4. It is on that basis that the appeal comes before me to determine whether there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr Hawkin. Mr Hawkin is familiar with this matter, he is the author of the Grounds of Appeal. The Appellant did not personally attend and I am advised that one of her children is unwell. The Appellant has previously been granted anonymity. No application is made to vary that order and the anonymity direction will remain in place. The Secretary of State appears by her Home Office Presenting Officer, Mr Tarlow.
Submissions/Discussion
5. Mr Hawkin submits that the matter should be remitted and that there be a de novo hearing. He submits that it was wrong for the First-tier Tribunal Judge to consider the previous hearing and have regard to it and to use information from within it to make an adverse credibility finding. He submits that to do so undermines the purpose of the direction of Upper Tribunal Chapman remitting the matter back to be reheard with none of the findings of fact to stand.
6. Mr Hawkin also seeks to rely on his other Grounds of Appeal. He submits that the finding of the judge that the Appellant's evidence was "lacking both in detail and corroborative evidence" is not supported by the Appellant's written or oral testimony and it is his contention the other grounds in similar manner to the main thrust of his argument reflect the findings of the First-tier Tribunal Judge have been infected by consideration of the previous judge's decision and that in the interests of fairness the decision should be set aside.
7. In response Mr Tarlow submits that there is no error of law found if the determination is read fully. What the judge has done is note that the Appellant's cousin did not give evidence at the previous hearing and the reference to implausibility refers to the judge's own view that the witness statement from the Appellant's cousin for the basis of cross-examination and evidence for the judge in Judge Talbot's view had been essential. He submits that there was nothing wrong in Judge Talbot making such assertions and that the judge is saying he did not believe the credibility of the Appellant because there was no evidence available from a witness who would have been extremely important to support it.
8. Thereafter the judge makes further adverse credibility findings in paragraphs 18 to 20 of his decision and these are findings that the judge he submits was entitled to make. Overall he submits there is no material error of law.
9. In brief response Mr Hawkin submits that merely by reading the decision when it has been set aside with none of the findings of fact is wrong and that in this case it has led the judge down the wrong path.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
12. As a matter of fact and law I do not consider that it is wrong for the First-tier Tribunal Judge to make reference to a previous decision albeit if it has been set aside and remitted back to be heard de novo. What may well be wrong is to base findings of fact on that decision when it has been stated that none of those findings of fact are to stand. That I acknowledge would seemingly constitute an error of law unless there had been fresh evidence of a similar ilk to that that had been before the original First-tier Tribunal Judge.
13. The important paragraph here is paragraph 17 of Judge Talbot's decision. It starts by making reference to the fact that the Appellant's evidence is lacking both in detail and in corroborative evidence. He sets out therein the corroborative evidence that he would have expected. The part of the paragraph with which Mr Hawkin takes exception is as follows:
"Bearing in mind both that the cousin's absence was noted by the judge at the previous hearing but also that she had been legally represented for several years I find it quite implausible that her solicitors would not have spoken to her about getting corroborative evidence from her cousin or that the cousin himself would not have been anxious to do whatever he could to support her in this way. Yet there was not even a witness statement from him and when asked about this, the Appellant claimed that her solicitors have never mentioned the need for this. I find the Appellant's failure to obtain supporting evidence from her cousin to seriously undermine the claim of her credibility."
14. Thereinafter at paragraphs 18 to 21 he looks at further evidence which gives rise to his credibility concerns. I do not consider that there is anything within the manner in which the judge has addressed this matter which implies that he has drawn adverse credibility findings from Judge Khan's previous decision. The reference he makes are ones that he was perfectly entitled to and reflect his own assessment of the position as it was before him. As such I do not consider that it constitutes any material error of law.
15. A proper approach to credibility would require an assessment of the evidence and of the general claim. This is something that has effectively been described by Judge Talbot in some detail in his determination. In asylum claims, relevant factors would be the internal consistency of the claim, the inherent plausibility of the claim and the consistency of the claim with external factors of the sort typically found in country guidance. I accept that it is theoretically correct that a claimant need do no more than state his claim but any claim still needs to be examined for consistency and inherent plausibility and in nearly every case external information against which the claim could be checked would be available.
16. This approach seems to be exactly the approach that has been quite properly addressed by Judge Talbot. His references as to the evidence he would have expected to find are ones that he was perfectly entitled to make and the fact that the Appellant's cousin's absence was noted by Judge Khan does not in any way being referred to constitute a material error of law.
17. In addition I have given due consideration to the other grounds set out by Mr Hawkin in his extensive Grounds of Appeal. I am satisfied that the manner in which the corroborative evidence and the grounds generally set out therein are dealt with are thoroughly and properly addressed by Judge Talbot and that he has made findings based on his own analysis of the evidence that he was perfectly entitled to. For all the above reasons the decision discloses no material error of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision
The decision of the First-tier Tribunal discloses no material error of law. The Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
The Appellant has previously been granted anonymity. No application is made to vary that order and none is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 29 July 2019

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 29 July 2019

Deputy Upper Tribunal Judge D N Harris