Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10165/2018

THE IMMIGRATION ACTS

Heard in George House, Edinburgh
Decision & Reasons Promulgated
On 6 May 2022
On the 20 June 2022
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

R M L
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Winter, instructed by DMO Olabamiji Solicitors
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against a decision of First-tier Tribunal Judge Handley promulgated on 5 December 2018 dismissing her appeal against the decision of the Secretary of State made on 6 August 2018 to refuse her claim for asylum.
2. In summary, the appellant’s case is that she and her family are at risk from a gang in El Salvador known as MS-13. This is because the appellant had reported to the police the rape of her eldest daughter, who had been attacked and raped by several members of the MS-13 gang. The Secretary of State did not initially accept that or consider that the appellant would be at risk even were that true. The judge accepted on the basis of a concession by the Secretary of State that the appellant’s daughter had been raped. He did not, however, accept much of the rest of the appellant’s case, reaching a significant number of findings about the credibility of the appellant, her husband and witnesses in which he found a large number of inconsistencies.
3. Permission to appeal against that decision was initially refused by the First-tier Tribunal and again by the Upper Tribunal but, following an application for judicial review made the Outer House in the Court of Session, the refusal of permission was reduced, and a decision was later substituted granting permission to appeal to the Upper Tribunal. The appeal then came before the Upper Tribunal which, in a decision promulgated on 15 February 2021, dismissed the appeal, finding no error of law. Subsequent to that, the appellant obtained leave to appeal to the Inner House in the Court of Session against that decision which was reduced on the basis of concessions made and as set out in the joint note of Mr Winter for the appellant and Mr Pirie for the Advocate General for Scotland.
4. The main concern recited in the note at paragraphs 3 to 5 is that there had been a concession that the appellant’s daughter had been the victim of a sexual assault perpetrated by gang members; that this had not been properly addressed in the decision of the Upper Tribunal; and, on that basis, an error of law should have been found.
5. Having heard submissions from both representatives, Mr Mullen very fairly conceded that, in all the circumstances of this case, he could not resist the submission that there was an error of law in the decision of the First-tier Tribunal and that the appeal should be should be remitted to the First-tier Tribunal.
6. Mr Winter submitted in fact there was a sufficient basis on which not only should an error of law be found but the decision should be remade in the Upper Tribunal allowing the appeal on the basis of the facts as accepted.
7. I conclude that the error of law as claimed has been made out. That is that the judge did not properly assess the rest of the case in the light of the actual concession made.
8. A concession as to facts does not stand in isolation; it was accepted here that the appellant’s daughter had been subjected to multiple rapes by a gang and that the family then left first to go to San Miguel in El Salvador and then left the country. Those facts alone had the potential in the light of the report of the expert Professor María Josefina Saldaña-Portillo that there would be a risk to the appellant and her family.
9. For these reasons I consider that the decision of the First-tier Tribunal did, as has been effectively conceded, involve the making of an error of law capable of affecting the outcome as has been averred in the grounds. It falls therefore to be set aside. In light of the nature of the concession, which was not, in my view, properly factored into the rest of the credibility findings with the exception of the concession as recorded, none of the factual findings of the First-tier Tribunal are preserved.
10. I have considered whether I should remake the decision in the Upper Tribunal but I consider that would not be appropriate. Despite Mr Winter’s forceful submissions I am not persuaded that the expert report can bear the necessary weight he seeks to put on it. That is because of the delay (on the appellant’s own evidence) between the attacks on her daughter in January 2017, the renewed interest of the gang in July 2017 and the delay in leaving the country. Whilst the expert’s report does indicate that they would be at risk from the gang elsewhere in El Salvador and everywhere else for that matter in the country, it is not clear that the expert has addressed whether the risk would be the same on the facts as established by the First-tier Tribunal nor does it address the delays. Further, the continued adverse interest on the part of the gang is relevant to the risk, and there were significant doubts about the evidence on that, albeit findings which were infected by the error identified above.
11. Accordingly, for these reasons the decision of the First-tier Tribunal involved the making of an error of law and is remitted to the First-tier Tribunal to be heard by a different First-tier Tribunal Judge, and that concludes my decision.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside
2. I remit the appeal to the First-tier Tribunal for it to make a fresh decision on all issues.

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 her or any member of her 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 18 May 2022

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul