Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004523

First-tier Tribunal No: PA/55264/2022;
IA/00182/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23rd April 2024

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

YIMAO LIN
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr B Shabbir, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mr M Diwyncz, Senior Home Office Presenting Officer

Heard at Edinburgh on 4 April 2024

DECISION AND REASONS
1. FtT Judge Komorowski dismissed the appellant’s appeal by a decision dated 31 August 2023.
2. By an application dated 12 September 2023, the appellant sought permission to appeal to the UT.
3. The grounds in the application are: …
[1] At paras 11 and 13(ii) of the determination, Judge Komorowski notes that there was an undated letter from L W but stated that there was no evidence of transmission such as a postmarked envelope. The undated letter can be found at pages 106 – 108 of the Hearing Bundle. Following that at pages 109 – 111 there is an envelope addressed to the Appellant (page 110) and a receipt dated 10th February 2023 (page 109), with a postage paid receipt shown on page 111 (however, it should be noted that the stamp is unclear). … the Judge has … arguably failed to consider this evidence, or failed to provide reasons as to why this has been rejected. At para 13 of the determination, Judge Komorowski notes that the cumulative effect of the difficulties noted means that there was no real prospect that the copy documents represented true copies of authentic documents. If there are possible issues of failing to consider evidence provided in parts of the cumulative assessment, then the cumulative assessment as a whole would be unsound and require to be remade.
[2] At para 19, Judge Komorowski considers the very significant obstacles to integration test in assessing the Appellant’s private life claim. Reference is made to the Appellant’s Hepatitis B at paras 15 and 17 … the Judge has considered the health implications of the Appellant’s Hepatitis B, but not the effect of discrimination on his integration to China. Para 25 of the ASA at page 83 of the Hearing Bundle noted this consideration; and there was evidence of discrimination in the areas of employment and education in the Freedom House report lodged at page 446 of the Hearing Bundle … failure to consider this relevant matter is an arguable error of law.
4. On 11 October 2023 FtT Judge Seelhoff granted permission: …
[2] The grounds assert that the Judge erred in attaching adverse weight to the Appellant’s failure to provide evidence of how a handwritten letter from a witness LW had been obtained including the failure to provide postage receipts when in fact a postage receipt and envelope had been provided and appeared immediately after the letter in the bundle.
[3] Whilst this goes to only one criticism of the evidence made by the judge it is a clear error and it would be appropriate for the Upper Tribunal to consider the materiality of the error in the context of the other findings and evidence given that it had been a factor in the cumulative assessment of credibility.
[4] The grounds further allege the judge failed to consider risks of discrimination against the Appellant on account of his Hepatitis B when assessing obstacles to integration in China. It is arguable that the judge ought to have addressed the condition in this context as well.
5. Mr Shabbir provided a clear and detailed skeleton argument, dated 29 March 2023, referencing the Judge’s oversight, and relating the factual error to his adverse credibility conclusions, reached on a cumulative basis.
6. Mr Diwyncz conceded that the Judge was wrong in saying there was no evidence of transmission before him. He further accepted that while other reasons were given it could not safely be said that the outcome must have been the same, but for the error.
7. In my view, that concession was fairly and correctly made.
8. I doubt whether ground 2 on its own might have attracted a grant of permission, or led to setting aside; but that need not be taken any further.
9. The outcome was agreed to be as follows.
10. The decision of the FtT is set aside, other than as a record of what was said at the hearing. The case is remitted for fresh hearing before another Judge.

Hugh Macleman

Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 April 2024