Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09133/2016

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 7th February 2017
on the 20th February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR T. A.
(Anonymity Direction made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Khan (Counsel)
For the Respondent: Mr Nath (Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Moore promulgated on the 17th October 2016, in which he dismissed the Appellant's appeal against the decision of the Respondent dated the 8th August 2016 to refuse his protection claim on asylum, humanitarian protection and Human Rights grounds. The Appellant claimed protection stating that he would be at risk of persecution on the basis of his religion, as he is an Ahmadiyya who says that he will be persecuted upon return to Pakistan.
2. Permission to appeal against the decision of First-tier Tribunal Judge Moore was granted by First-tier Tribunal Judge Grimmett on the 29th December 2016. Judge Grimmett found that it was arguable that the Judge erred in his conclusions at paragraph [31] in light of the record of proceedings, which was said to support the Appellant's claim that the Judge had overlooked evidence when concluding the Appellant was not a truthful witness. Permission was further granted on the basis it was arguable that the Judge failed to have regard to the case of MN. It was stated that all grounds may be argued.
3. Since that date, the Respondent has filed a Rule 24 Reply dated the 16th January 2017, in which it was argued, inter alia, that the Judge had directed himself properly, and that the Learned First-tier Tribunal Judge had given adequate reasons for finding the Appellant was not credible between [27] and [39] and it was said that the grounds mainly amounted to disagreement with the findings of fact made.
4. The full submissions made by Mr Khan of Counsel on behalf of the Appellant are contained within the record of proceedings, and are therefore not repeated in their entirety here, but having heard from Mr Khan, and having heard the extracts from the record of proceedings from First-tier Tribunal Judge Moore, which I read out at the appeal hearing, Mr Nath on behalf of the Respondent conceded that the Learned First-tier Tribunal Judge was wrong and did err at [31] in finding that "however, the Appellant in his evidence at this hearing denied ever going to Karachi". The record of proceedings from the Judge, indicates that the Appellant was in fact asked a question during cross-examination regarding why he had not mentioned having been to Karachi, and that the Appellant had replied that he had mentioned this in his first interview, but that he had not put it in his statement, as it was not in his mind at the time and had forgotten about it. Mr Nath conceded therefore that the Learned First-tier Tribunal Judge had misquoted the evidence that was actually given by the Appellant as recorded within the record of proceedings, when stating that the Appellant had said that he had never been to Karachi, and that as the Appellant's credibility had been considered holistically, this did amount to a material error of law.
5. Mr Nath further conceded on behalf of the Respondent that the Judge had made a further error at [31] of the decision, when simply finding that the Appellant had given evidence at the hearing that he never worked for any royal family (H. Enany and family) in Saudi Arabia, but at Annex D of the Respondent's bundle was a visa issued from the 5th January 2016 until the 5th July 2016 to a person with the Appellant's name who was born on the 15th February 1979, which was said to be found by the Judge to be a visa issued to the Appellant in contradiction to the evidence given at the hearing, whereas the Appellant's evidence as recorded within the record of proceedings was that the visa had been obtained through an agent and the Appellant did not know what was on the work visa. Mr Nath conceded that the reasoning given by the Judge was unclear and confused, and did not appear to take account of the evidence given by the Appellant in that regard. I therefore do also accept that the Judge failed to take account of relevant evidence in that regard and has failed to analyse and assess the evidence given by the Appellant that he did not actually know what was on the work visa the same having been obtained through an agent.
6. I further find as a fact that the Learned First-tier Tribunal Judge did err in law at [29] when disregarding the evidence from the Ahmadiyya Association UK, on the basis inter alia, that the latest letter dated the 23rd July 2016 referred to reports from the President of Newham was irrelevant as the Appellant did not live in that region, when in fact the Appellant at the time lived in Dagenham, which although not part of Newham as suggested within the Grounds of Appeal, is within the same region, as they are adjacent London boroughs. I therefore find that the Judge has made a material mistake as to fact when considering that evidence, which does amount to a material error of law, given that the Judge's decision would not necessarily have been the same.
7. I therefore do find that the decision of First-tier Tribunal Judge Moore does contain material errors of law, , and in such circumstances, given that those errors do go to the crucial issue of credibility, and the Judge's analysis of the same, it is appropriate for the decision of First-tier Tribunal Judge Moore to be set aside in its entirety, and the case to be remitted back to the First-tier Tribunal for re-hearing de novo, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.
Notice of Decision
The decision of First-tier Tribunal Judge Moore does contain material errors of law and is set aside;
The appeal is to be remitted back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.
The Appellant was granted anonymity before the First-tier Tribunal, and it is appropriate, given the circumstances of this case, for such anonymity to be retained. Unless and until a Tribunal Court otherwise directs, the Appellant is thereby granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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

R.F.McGinty

Deputy Upper Tribunal Judge McGinty Dated 7th February 2017