Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11717/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 February 2019
On 28 February 2019

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

J M
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr K Scott, Pickup Scott Solicitors
For the Respondent: Ms C Cunha, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. The appellant, a citizen of Kenya, has permission to challenge the decision of Judge NMK Lawrence of the First-tier Tribunal (FtT) sent on 18 December 2018 dismissing her appeal against a decision made by the respondent on 20 September 2018 refusing her protection claim.

2. The basis of her claim was two pronged. She claimed she would be at risk on return first because she would again be targeted by the same individuals who had harmed her in Kenya and second because she would, having been subsequently trafficked to the UK, she would be at risk of re-trafficking.

3. I can be brief in stating my decision as both parties were in agreement that the judge's treatment of the issue of the credibility of the appellant's account was vitiated by legal error. At paragraph 27 the judge stated:

"In my analysis, to the lower standard, the appellant's claim is based on fantasy and it does not possess the smallest fraction of an atom of a grain of truth. Consequently, I find I am unable to attach much weight to the "TO WHOM IT MAY CONCERN" letter, at page 20 of "App 1"."

4. And at paragraph 37 he said:

"The respondent appears to have accepted that the appellant was trafficked to the UK (see: para 18 of the respondent's DECISION). On the evidence before me I find her credibility has been damaged to such an extent I find she has not been trafficked. In any event, there is sufficiency of protection."

5. Juxtaposition of these two paragraphs points up the acute problem that the judge failed to consider the appellant's asylum claim holistically and in deciding on the appellant's credibility failed to take any account whatsoever of the reasons given by the respondent for endorsing the NRM conclusion that the appellant had been trafficked. It does not appear that the judge paid any attention to the NRM decision. If he had, he would have seen that they considered her account internally and externally consistent. That is not to say that, had he taken account of the NRM and respondent's views on this issue, he would necessarily have come to a different view, but he clearly could not have continued to propound the absolutist statement of paragraph 27.

6. I am satisfied that the judge's error was material. Although he did venture a finding in the alternative - that the appellant even if accepted as credible would have available state protection either in her home area or through internal relocation see paragraphs 37 and 42 - there was no consideration of the risk of re-trafficking.

7. Given the manifest error it is unnecessary to address the appellants' other grounds. The decision is set aside. I see no alternative to the case being remitted to the FtT.

8. The parties sought clarification as to whether the remittal should be for a de novo hearing in every respect.

9. In view of the centrality to the appellant's case is the issue of credibility, I direct that the next hearing deal with the facts de novo. However, in relation to the Article 8 claim I would record that I see no real dispute between the parties as to the basic particulars; it is accepted as I understand matters that the appellant is in a family life relationship with Mr Paul Hammond. The issue concerning Article 8 is principally about how these accepted particulars are to be evaluated.

10. For the above reasons:

The decision of the judge is set aside for material error of law.

The case is remitted to the FtT (not before Judge NMK Lawrence) for a de novo hearing.

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: 25 February 2019

Dr H H Storey
Judge of the Upper Tribunal