Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13758/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th January 2018
On 19th January 2018

Before

UPPER TRIBUNAL JUDGE COKER

Between

[I M]
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Childs, instructed by CK Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. First-tier Tribunal Judge Beg dismissed the appellant's protection and human rights claim for reasons set out in a decision promulgated on 17th July 2017. The appellant sought, and was granted, permission to appeal on the grounds that it was arguable:

i. That the respondent had conceded the appellant was entitled to humanitarian protection;
ii. That the judge had failed to give adequate reasons for her findings; and
iii. Had failed to make proper findings in terms of reception facilities.

2. The appellant sought permission on the ground that the judge had given the appearance of bias. Permission was not granted on this ground. Nevertheless, the counsel who had appeared for the appellant before the First-tier Tribunal produced to the Upper Tribunal today a witness statement and her contemporaneous record of the proceedings. Ms Childs had no explanation why the witness statement from Ms Fisher had been produced so late without any explanation. She confirmed that no application for permission to appeal on that ground had been made to the Upper Tribunal and in the circumstances and given that permission could be implied as refused, she did not pursue that ground of appeal.

3. The witness statement of Ms Fisher seems to assert that the judge stated that the appellant was entitled to humanitarian protection although she does not say this in terms. The note of proceedings made by the presenting officer does not record that finding and nor does the note made by the judge. The note by the judge and the PO records that the appellant was invited to consider withdrawing his asylum claim and relying upon humanitarian protection claim; he did not do so. The contemporaneous record produced by Ms Fisher does not record such a statement by the judge. Given the note by the PO and the note by the Judge and the lack of any note of such a decision by Ms Fisher, I do not accept that the judge said that but then failed to set that out in the decision. There is no merit in that ground of appeal.

4. The grounds upon which permission had been sought were amplified by Ms Childs. In essence, it was submitted that the finding by the judge that the appellant had an aunt in Kabul with whom he could stay and thus he was not at risk on return as a minor, was legally flawed. The existence of the aunt had come to light during the hearing. There was, she submitted, no evidence as to the suitability or even agreement of the aunt to provide adequate reception facilities for the appellant and, given the acceptance by the respondent that there were inadequate reception facilities available as provided by his father, it was not open to Judge Beg to make the finding she did.

5. The issue of the aunt was not explored by either representative in the First-tier Tribunal but it is a very large step to make a finding that an aunt who lives in Kabul can provide adequate reception facilities in the absence of evidence to that effect and given an earlier decision by the respondent that there were not adequate reception facilities. That finding by the judge led to her failing to have adequate regard to AA (unattended children) Afghanistan CG [2012] UKUT 00016. The judge has materially erred in law in her conclusion that the appellant was not at risk of serious harm on return to Kabul.

6. The judge made findings relating to the gang and threats based upon whether the appellant would have behaved in the way he did confronting the gang. The judge failed to have regard to the reach of the gang and its motivation, as considered by Dr Giustozzi on his report, despite having accepted that the appellant and his family were harassed. The findings are unsafe and the reasons provided as justification are peripheral to the core of the claim of threats. The judge has materially erred in law.

7. I set aside the decision for material errors of law; no findings preserved.

8. It is not the role of the Upper Tribunal to make primary findings of fact where these findings are disputed or unclear as in this case. I conclude the decision should be remitted to the First-tier Tribunal for a First-tier Tribunal judge to determine the appeal.

Conclusions:

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 the decision and remit it to the First-tier Tribunal for re-hearing.

Date 17th January 2018

Upper Tribunal Judge Coker