Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10477/2019(V)

THE IMMIGRATION ACTS

Heard remotely from Field House
Decision & Reasons Promulgated
On 23 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

A E
(anonymity directioN MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the appellant: In person
For the respondent: Mr T Lindsay, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This decision has three parts to it: first, the general background to the appeal; second, a discussion about the legal issue of the respondent’s withdrawal of the refusal of the appellant’s protection and human rights claims and the effect of this; third, observations and comments directed to the appellant himself.

General background
2. The appellant is a citizen of Iran. He came to the United Kingdom in 2019 and claimed asylum on the basis of his Kurdish ethnicity and his claimed involvement with the KDPI. The claim was refused and the appellant appealed to the First-tier Tribunal. That appeal was initially dismissed in April 2020, but the decision was set aside by the Upper Tribunal in December of that year and the appeal remitted. The re-hearing of the appeal took place and another negative decision was made in February 2021. By a decision dated 2 February 2022, I concluded that the First-tier Tribunal had again erred in law and that its decision should be set aside. I retained the appellant’s case in the Upper Tribunal for a resumed hearing to take place in due course.
3. During the course of the error of law hearing, the appellant (who appeared in person) raised the issue of his claimed conversion to Christianity. I directed the appellant to send any evidence about this to a named Senior Home Office Presenting Officer and then listed a case management hearing. That took place on 14 April 2022. The respondent confirmed that the appellant had provided some information, that she regarded the claimed conversion as a “new matter”, and that she gave consent for it to be considered by the Tribunal at a substantive hearing.
4. A resumed hearing was listed for 23 June 2022 at Field House in London.
5. As result of the national train strike on that date, I converted the face to face hearing into a remote hearing.
6. On the day of the hearing, the appellant, Mr S Cope (a witness), Mr Lindsay, and a Farsi interpreter attended. There were no technical difficulties.
7. The appellant understood the interpreter and vice versa. I endeavoured to ensure that the appellant was fully appraised of everything being said by Mr Lindsay. I took time to explain the nature of the preliminary issue (see below) and my ultimate decision in the case. I am satisfied that the appellant did understand what was being said and done.

The preliminary legal issue
8. At the outset of the hearing, Mr Lindsay raised a preliminary issue. Initially, he expressed the respondent’s concern as to the lack of a witness statement or letter from the appellant relating to his claimed conversion. Further, he indicated that there were some questions relating to a letter provided by the appellant’s church. These matters were to be seen in light of the fact that the respondent had not provided a supplementary reasons for refusal letter or any other consideration as a primary decision-maker.
9. I suggested that the appellant had, albeit only after the error of law hearing, provided some evidence about his claimed conversion to the respondent and that she had given consent for the issue to be addressed at the resumed hearing. In addition, I suggested that the appellant might be able to write up some sort of a letter/statement during the morning which could be considered in the appeal later in the day.
10. Mr Lindsay maintained his concerns and, having reflected on the situation as a whole, stated the respondent’s final position to be that the underlying refusal of the appellant’s protection and human rights claims would be withdrawn.
11. In reliance on SM (withdrawal of appeal to decision: effect) Pakistan [2014] UKUT 64 (IAC), Mr Lindsay submitted that I had no power to prevent the withdrawal of the underlying decision. However, I did have to decide whether, in the context of re-making a decision in an appeal brought under the Nationality, Immigration and Asylum Act 2002, I should proceed formally to dismiss or allow the appeal, or to determine the appeal substantively (in other words after hearing all the evidence and submissions from the two sides).
12. The judicial headnote of SM states as follows:
“(1) Rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 does not enable the Upper Tribunal to withhold consent to the withdrawal by the Secretary of State of the decision against which a person appealed to the First-tier Tribunal.
(2) Where such a decision is withdrawn in appellate proceedings before the Immigration and Asylum Chamber of the Upper Tribunal, that Tribunal continues to have jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to decide whether the determination of the First-tier Tribunal should be set aside for error of law and, if so, to re-make the decision in the appeal, notwithstanding the withdrawal of the appealed decision. Such a withdrawal is not, without more, one of the ways in which an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ceases to be pending.
(3) When re-remaking a decision in a 2002 Act appeal where the decision against which a person appealed has been withdrawn by the Secretary of State, the Upper Tribunal will need to decide whether:-
(i) to proceed formally to dismiss (or, in certain circumstances, allow) the appeal; or
(ii) to determine the appeal substantively, including (where appropriate) making a direction under section 87 of the 2002 Act.
(4) In deciding between (i) and (ii) above, the Upper Tribunal will apply the overriding objective in rule 2 of the 2008 Rules, having regard to all relevant matters, including:-
(a) the principle that the Secretary of State should, ordinarily, be the primary decision-maker in the immigration field;
(b) whether the matters potentially in issue are such as to require the Tribunal to give general legal or procedural guidance, including country guidance;
(c) the reasons underlying the Secretary of State’s withdrawal of the appealed decision;
(d) the appeal history, including the timing of the withdrawal; and
(e) the views of the parties.”
13. I agree with Mr Lindsay that I have no power to prevent the respondent from withdrawing the underlying decision in this case.
14. As Mr Lindsay rightly said, the question is then what I should do next.
15. For the reasons set out below, I have decided that I should not consider the appellant’s appeal substantively.
16. First, I have regard to the overriding objective. This involves considering fairness to both parties and the need to deal with cases efficiently.
17. Second, the respondent has not made her own decision on the very important issue of the appellant’s claimed conversion to Christianity. This claim was only raised during the course of the error of law hearing in January 2022. It is true that the appellant sent in some information, but, apart from the lack of a witness statement from him, there has been no supplementary decision letter, no opportunity to potentially interview the appellant, and no opportunity to seek to clarify any questions arising from the evidence provided in advance of the hearing.
18. It would in my view have been better if the respondent had decided to withdraw the decision before the hearing. This could have been done at or around the time of the case management hearing in April. Despite this, the Christian conversion issue is clearly very significant and this is a good reason for the respondent to be able to make her own initial decision on it before the Tribunal considers it. This factor counts against me substantively considering the appellant’s appeal now.
19. Third, this case does not involve the possibility of legal or procedural guidance in terms of a wider application. This case is very much about his own particular facts. This factor also counts against substantively considering the appellant’s appeal now.
20. Fourth, in my view there are good reasons underlying the respondent’s withdrawal of the refusal decision. As mentioned before, the Christian conversion claim is a very significant new matter in this case. Although the respondent might have acted sooner to take the view that she now has, the period of time between the appellant raising it and the hearing was not particularly lengthy. Further, the respondent has not been provided with a full evidential picture relating to the new matter. In part, this is because of the lack of legal representation for the appellant (this is no criticism of the appellant himself).
21. Fifth, this appeal does have a lengthy history. Having said that, the Christian conversion claim was only raised during the course of the error of law hearing in late January 2022. As to the timing of the withdrawal, I have already noted that it could, and probably should, have been contemplated sooner. Against that, I do not doubt that Mr Lindsay was only assigned to this case at a relatively late stage and his submissions and position in general have been fair and meritorious.
22. Sixth, the appellant explained that he was not aware that he should have provided a statement/letter about his claimed conversion earlier. Again, I make no criticism of him. He did not tell me that there were any particularly strong reasons why he thought that his appeal should still be considered substantively now. In terms of the respondent’s view, I have already set out the various points made.
23. The final issue in the case is how I should dispose of (end) the appellant’s appeal at this stage.
24. I have decided that the appropriate course of action is to formally dismiss the appeal in light of: (a) the fact that the underlying decision has been withdrawn; (b) my conclusion set out at paragraph 15, above, and the six reasons provided.

Observations/comments
25. I commend the appellant for doing a good job in representing himself in these proceedings. It is a pity that he has been unable to find legal representation. In my view, it is worth him still pursuing that possibility even though these appeal proceedings have now stopped.
26. It is important to note a couple of statements made by Mr Lindsay at the hearing. He confirmed that there was “at least a real possibility that the appellant would be granted refugee status” upon further consideration of his Christian conversion claim by the respondent. He also confirmed that there was “no reason to doubt the veracity” of what Mr Cope said in his email of 21 June 2022. Mr Lindsay confirmed that he would provide a full note of what had taken place at the hearing and provide this to a decision-maker at the Home Office within 24 hours of the hearing. Mr Lindsay confirmed that he would ask for the appellant’s case to be looked at expeditiously (speedily).
27. I raised a concern about the possibility of the appellant’s case being linked to that of his brother’s (who has further representations outstanding), and that this might cause a delay. Mr Lindsay noted this concern and said that he would pass it on to any decision-maker and try to prevent this from happening.
28. A final matter raised by Mr Lindsay was this. The appellant already had his professional email address through correspondence prior to the hearing and Mr Lindsay indicated that he would be willing to entertain concerns or queries raised by the appellant during the course of the reconsideration of his case. I commend Mr Lindsay for that fair and very helpful position.
29. It certainly appears as though the appellant is being provided with support from his church. I mentioned to Mr Cope at the hearing that any continuing support would no doubt be appreciated by both the appellant and very probably the respondent. It will be important for the appellant to respond to any requests made by the respondent during the reconsideration process. The church may well be able to assist with this.
30. The last point I wish to make is this. The appellant should be clear that his protection and human rights claims are now once again outstanding before the respondent. That means that the claims are waiting for a new decision. He is not someone who has come to the end of the asylum-seeking process.

Anonymity
31. An anonymity direction has been in place throughout proceedings before the First-tier Tribunal and the Upper Tribunal. Although the respondent has now withdrawn her decision, the appellant has still got an outstanding protection claim. Anonymity remains justified.

Notice of Decision
32. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.
33. I re-make the decision by formally dismissing the appeal for the reasons set out above.

Signed: H Norton-Taylor Date: 23 June 2022

Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed: H Norton-Taylor Date: 23 June 2022

Upper Tribunal Judge Norton-Taylor