Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13790/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 May 2019
On 21 May 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

JU
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. N. Quadi, Counsel instructed by Duncan Lewis & Co
For the Respondent: Mr. L. Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against a decision of First-tier Tribunal Judge Cohen, promulgated on 26 February 2019, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse a grant of asylum.
2. As this is an asylum appeal I make an anonymity direction.
3. Permission to appeal was granted as follows:-
"It is arguable that the Judge erred in rejecting the expert's report on the grounds that she "had mission in dealing with this issue" and the failure to provide her CV. As the grounds state, the expert complied with paragraph 10.9 of the Practice Directions of the Immigration and Asylum Chamber and the Judge gave no reasons for concluding that the expert had a mission. Whilst the other grounds are less arguable I do not refuse permission. In light of the decision of the Upper Tribunal in Safi and Others (permission to appeal decisions) [2018] UKUT 00388 (IAC)."
4. The Appellant attended the hearing.
5. I heard brief submissions following which I stated that I found that the decision involved the making of material errors of law. I set the decision aside and remitted it to the First-tier Tribunal to be heard de novo.
Error of Law
6. The grant of appeal focused on ground 1, the treatment of the expert report. The Judge states at [40]:-
"The expert has produced an authentication of the arrest warrant finding it to have the hallmarks of a genuine document. This expression however is puzzling in the least. The expected not address the same (sic). The warrant contains the appellant's name and photograph so why state that her identity was unknown in doubt is unfathomable (sic). I note that the expert has not provided her CV. His (sic) previous summary of her academic expertise in Rwandan social political matters (sic). I find her own mission in dealing with this issue calls into question the weight that can be attached to this report. In the light of this report and the failure of the expert to provide her CV, I attach very little weight to this report."
7. Mr. Tarlow accepted that he "had difficulties" with this paragraph. I find that the Judge has given no reasons for his finding that the expert had "mission". It is difficult to know what he means by "her own mission in dealing with this issue" as there is no explanation given. Ground 5 sets out the many and various spelling and grammatical errors in the decision. The paragraph set out above contains such errors, which makes the Judge's findings regarding the expert report yet more unclear. I find that the Judge has failed to give adequate reasons for giving little weight to the expert report. I find that this is a material error of law.
8. While I do not need to proceed to consider the other grounds, I find that grounds 3 and 4 are also made out. At ground 3 it is submitted that the Judge has mistakenly stated that the evidence provided by the Respondent referred to at [40] and [41] was contained in the Appellant's bundle. At [26] the Judge states:
"It was put to the appellant that in the photographs she produced of her husband in uniform that the badge was on the right, whereas in the objective evidence and photographs produced in the appeal bundle the badge was shown on the left."
9. This is to misunderstand the evidence. Photographs showing the badge on the left were provided by the Respondent on the day of the hearing. They were not in the Appellant's bundle. There is no reference to the submissions made regarding the unreliability of the evidence provided by the Respondent. Further, it is not clear whether this evidence has led the Judge to conclude that the Appellant's husband was not in the police as there is no clear finding as to whether the Appellant's husband was in the police or not. I find that this failure to make a finding on a core issue is a material error of law.
10. In relation to ground 4, the Judge has not considered the Appellant's explanation for her delay in claiming asylum ([44] and [47]). I find that he has failed to take into account relevant evidence. His finding that the Appellant's credibility is damaged by behaviour falling under section 8 has not taken into account her explanation for the delay. Given that this goes to her credibility, I find that this is a further material error of law.
11. I find that the decision involves the making of material errors of law. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, given that the credibility findings cannot stand, and having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.
12. I thanked Mr. Tarlow for the approach taken to this appeal.

Notice of Decision
13. The decision of the First-tier Tribunal involves the making of material errors of law and I set the decision aside.
14. The appeal is remitted to the First-tier Tribunal de novo.
15. The appeal is not to be listed before Judge Cohen.
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 17 May 2019

Deputy Upper Tribunal Judge Chamberlain