Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00073/2016

THE IMMIGRATION ACTS

Heard at Hill Street, Birmingham
Decision and Reasons promulgated
On 17 March 2017

On: 20 March 2017

Before

The President, The Hon. Mr Justice McCloskey and
Deputy Upper Tribunal Judge Mandalia

Between

LTM
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
Appellant: Mr R Khubber, of Counsel, instructed by Turpin & Miller Solicitors
Respondent: Mr Mills, Senior Home Office Presenting Officer

DECISION

ANONYMITY

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

1. For the reasons articulated in our ex tempore decision given at the conclusion of this appeal hearing we find in favour of the Appellant.

2. This is a cessation of refugee status case, involving a decision on behalf of the Respondent, the Secretary of State for the Home Department (the “Secretary of State”) dated 23 May 2016, relating to the Appellant, a national of Zimbabwe now aged 23 years. The appeal to the First-tier Tribunal (the “FtT”) was dismissed.

3. The key to our decision lies in the following passage in the grant to permission to appeal:

“It is correct that at [15] – [23] the Judge finds that the conditions in Zimbabwe would be safe for the Appellant, without expressly assessing the above evidence…. (namely) … evidence from UNCHR to the effect that serious protection concerns persist in Zimbabwe.”

The grant of permission also refers to, in summary terms, evidence given by the Appellant’s father, who possesses refugee status, that he “was not safe” on a visit to Zimbabwe in March 2016.

4. It is common case that the FtT did not engage with the UNCHR evidence in its decision. Almost remarkably, it makes no mention of it. Mr Mills on behalf of the Secretary of State sought to persuade us that this error is immaterial. He did so by reference to a map highlighting certain areas of Zimbabwe and relating this to some geographical aspects of the family’s previous connections with this country.

5. We are unable to accept Mr Mills’ submission, resourcefully though it was made. In every cessation of refugee status case, the stakes are high and anxious scrutiny is required. The immateriality argument can succeed only if we are confident that if the stark error exposed had been avoided by the FtT the outcome viz a dismissal of the appeal, would inevitably have been the same. This is a self-evidently elevated threshold which we do not consider overcome. Furthermore, Mr mills submission noted above was really evidence which the Appellant did not have the opportunity of countering.

6. On the secondary ground of appeal we continue to entertain misgivings about how the FtT engaged with the evidence of the Appellant’s father. The main points of reference in this context are [17] and [20] of the determination, juxtaposed with the father’s second witness statement contained in the appeal bundle, at [23] especially. When we combine this with our assessment of the main ground of appeal, the conclusion that the decision of the FtT Tribunal must be set aside becomes irresistible. We make clear that this would have been our conclusion solely by reference to the first ground.

Decision

7. Thus we decide and direct:

(a) The decision of the FtT is set aside.

(b) Remittal is clearly the appropriate course in these circumstances.

(c) We remit the appeal to a differently constituted FtT for the purpose of rehearing and fresh decision.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

17 March 2017