Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12555/2016

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 4th April 2018
On 2nd May 2018

Before

DEPUTY upper tribunal JUDGE RENTON

Between

h h
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Dickson, Counsel, instructed by Paragon Law
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Iraq born on [ ] 1999. The Appellant first arrived in the UK via Turkey, Greece, Germany and France on 3rd May 2016. On that day the Appellant applied for asylum. That application was refused for the reasons given in an Asylum Decision dated 28th October 2016. The Appellant appealed and his appeal was heard by First-tier Tribunal Judge Lodge (the Judge) sitting at Birmingham on 27th April 2017. He decided to dismiss the appeal on asylum, humanitarian protection and human rights grounds for the reasons given in his Decision dated 1st May 2017. The Appellant sought leave to appeal that decision and on 2nd October 2017 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Judge dismissed the appeal because he found the Appellant's account of events in Iraq not to be credible as the Judge stated in paragraph 17 of the Decision. He found the Appellant's account to be implausible despite a report from an expert, Dr George, indicating to the contrary.
4. At the hearing before me, Mr Dickson referred to the grounds of application and argued that the Judge had erred in-law in coming to this conclusion. The Judge had relied excessively on what he found to be the implausibility of the Appellant's account, and did not put his concerns to the Appellant during the course of the hearing. This was contrary to the decision in HK v SSHD [2006] EWCA Civ 1037. Further, the Judge had failed to engage with the evidence of the expert. Whereas the Judge had acknowledged the age of the Appellant, he had not given him the benefit of any doubt. There had been no reference to the fact that the Appellant was a vulnerable witness, nor to the Presidential Guidance relating to such witnesses.
5. In response, Mrs Aboni submitted that there had been no such error of law. The grounds of application amounted to no more than a disagreement with the decision of the Judge. The Judge had considered all the relevant evidence and had made findings open to him upon that evidence. He had given adequate reasons for his findings, and had referred to the Appellant's age at paragraph 38 of the Decision. The Judge had also considered the expert's report, and had directed himself appropriately.
6. I find a material error of law in the decision of the Judge which I therefore set aside. The Judge's decision is based entirely upon his finding that the Appellant was not credible. However, the Appellant was still 16 years of age when he arrived in the UK, and was two months short of his 18th birthday at the time of the hearing before the Judge. He was therefore a vulnerable witness. It is true that the Judge referred to the Appellant's age at paragraph 19 of the Decision, and at paragraph 38 stated that he had borne in mind the fact that the Appellant was a minor. However, the Judge made no finding as to whether the Appellant was a vulnerable witness, and made no reference to the Presidential Guidance relating to such witnesses. It therefore cannot be said that the Judge treated the Appellant as a vulnerable witness when considering credibility, nor that he applied the contents of the Guidance. This alone is a sufficient error of law for the Judge's decision to be set aside.
7. I did not proceed to remake the decision in the appeal. That decision will be remade in the First-tier Tribunal in accordance with 7.2.(b) of the Practice Statements as there remains a considerable amount of judicial fact-finding to be done.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside that decision.
The decision in the appeal will be remade in the First-tier Tribunal

Anonymity

The First-tier Tribunal made an order for anonymity which I continue considering the age of the Appellant.

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 30th April 2018

Deputy Upper Tribunal Judge Renton