Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001739

First-tier Tribunal No: PA/54496/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

A Z
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr B Shabbir, advocate, instructed by Latta and Co Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 27 February 2025

DECISION AND REASONS

Introduction
1. The appellant was granted permission to appeal the decision of First-tier Tribunal Judge Hands who dismissed the appellant’s appeal by a decision promulgated on 7 February 2024, following a hearing which took place at Glasgow on 29 January 2024. That appeal challenged the Respondent’s decision to refuse the Appellant’s asylum, humanitarian protection and human rights claims dated 5 June 2023
2. Upper Tribunal Judge Meah granted permission to appeal on 25 July 2024.

Anonymity
3. The First-tier Tribunal made an order granting the appellant anonymity. I maintain that order given the sensitive personal matters relied on by the applicant.
Factual Background
4. The appellant is a national of Chad now aged 36 who entered the United Kingdom on 27 May 2020 and claimed asylum on that day. His account is that he had left Chad in 2013, before travelling to Libya where he remained until 2016. He then travelled to Italy, France, where he claimed asylum, Belgium, returned to France and then on to the UK. The basis for his claim is that he would be at risk of mistreatment due to his imputed political opinion and because, he claims, he was arrested, detained and beaten as a result of an accusation that he was a member of the Janjaweed and had supported an attempted coup. Therefore he claims that he would also be at risk of serious harm from the authorities in Chad due to his ethnicity.
5. The Respondent refused the Appellant’s claims by a decision of 5 June 2023. The Home Office accepted that the appellant had been mistreated and forced to work in Libya by smugglers. The decision maker did not accept that the Appellant had had to travel 250 kilometres to collect a laptop belonging to his cousin, nor that he had been arrested, detained in three different prisons and had been mistreated while in prison before escaping through a window. The decision noted a number of matters relating to the Appellant’s credibility which the Respondent considered inconsistent. The Appellant appealed against that decision to the First-Tier tribunal.
The decision of the First-tier Tribunal
6. The First-tier Tribunal judge heard the appellant’s oral evidence and dismissed his appeal in a written decision. The Judge made a series of findings on the appellant’s credibility at paragraph 21 of their decision. The first reason the Judge gave for finding that the appellant was not credible (at [21(a)]) was that the date of birth he gave for his second wife meant that she was 13 years old at the time of their marriage and the chronology of his account was inconsistent on when he divorced his first wife and whether he had met his daughter, born in January 2014, before he left Chad. The third reason the Judge gave for rejecting the Appellant’s account (at [21(c)]) was that the Appellant’s account regarding obtaining a laptop which he said contained details of his activities in Chad, was unimportant. The Judge also speculated regarding the possibility of others having access to the laptop. The Judge gave a number of other reasons for finding the Appellant not to be credible.
The appeal to the Upper Tribunal
7. The appellant sought permission to appeal on two grounds:
i. That the Judge failed to independently consider the ethnicity of the Appellant as a potential reason for his persecution on return to Chad; and
ii. That the Judge made findings of credibility which were unsupported by the evidence and not intimated to the appellant at the time of the hearing or prior to issuing the Determination.
8. Upper Tribunal Judge Meah granted permission to appeal by a decision dated 25 July 2024.
The error of law hearing
9. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it does, to either re-make the decision or to remit the appeal to the First-tier Tribunal to do so. I was provided with a bundle running to 289 pages together with the Appellant’s note of argument and a well prepared and concise bundle of authorities.
10. The hearing was attended by representatives from both parties. The Appeal was heard by CVP. All parties were able to see and hear all other participants.
11. At the outset of the hearing I confirmed with the parties that as this was an appeal from a First-tier Tribunal sitting in Scotland, any appeal from this Tribunal’s decision would go to the Court of Session in accordance with section 13(11) and (13) of the Tribunals Courts and Enforcement Act 2007.
12. At the outset of the hearing Mr. Walker for the Respondent accepted that there had been a material error of law by the First-tier Tribunal Judge as to how they dealt with the Appellant’s evidence relating to the findings at paragraph 21(a) of their decision. He accepted that the Judge relied on matters which had not been put to the appellant in cross-examination, namely his second wife’s age at the time of their marriage. He also accepted that the Judge had erred in finding an inconsistency over whether the appellant had met his daughter who was born in 2014, given that he had been in detention around that time. Mr. Walker conceded on behalf of the Respondent that there had been a material error of law by the First-tier Judge in how they dealt with that evidence. He accepted that the Home Office agree that the case ought to be remitted to the First-tier Tribunal for a re-hearing because the identified errors went to the appellant’s credibility.
13. In those circumstances it was not necessary for me to call on Mr. Shabbir to make submissions on the substance of the appeal. Mr. Shabbir agreed with the procedural course proposed by Mr. Walker.
Discussion
14. In light of the agreement between the parties that the Frist-tier Tribunal Judge’s decision contained a material error of law, I can state my decision on this appeal briefly.
15. It is convenient to start with ground 2. In granting permission to appeal Judge Meah noted that it is arguable that the Judge’s findings on the timing of the appellant’s second marriage and whether he had met his daughter before he left Chad led to a series of other adverse credibility findings. It does not appear that this was a matter that was put to the Appellant at the hearing.
16. I accept Mr. Shabbir’s submission in writing, based on HA v Secretary of State for the Home Department [20010] CSIH 28 at [7] that: ‘the Tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of that issue without giving the parties an opportunity to address it upon the matter.’ In this case the First-tier Tribunal Judge erred in law by making a negative finding regarding the appellant’s credibility based on a matter which had not been put to the Appellant in his oral evidence or raised in submissions.
17. Given the concession made by the Respondent that paragraph 21(a) of the Judge’s determination does contain a material error of law I need say no more about ground 2.
18. As to ground 1, it is correct that the First-tier Judge did refer to the Appellant’s claim being based in part on his ethnicity in their decision at [3], [21(d)], [32] and [34]. However, while the judge identified this as a basis for the claim, they did not explain the reasoning for their decision that the Appellant would not be at risk as a result of his ethnicity. Notably, paragraphs 32 and 34 of the decision related to the Appellant’s humanitarian protection claim, rather than his asylum claim. I accept Mr. Shabbir’s submission, not challenged by the Respondent, that the Judge’s decision on the humanitarian protection claim cannot be read across to the decision on the asylum claim. The Appellant’s claim based on his ethnicity was an important controversial issue to use the terminology explained by Holgate J in VV (grounds of appeal) Lithuania [2016] UKUT 0053 (IAC). The First-tier Tribunal’s decision did not give reasons for rejecting this aspect of the Appellant’s claim, discretely or at all.
19. Ground 1 also succeeds.
Conclusion
20. For the reasons set out above, I am satisfied that the decision of the First-tier Tribunal did involve the making of an error on a point of law.
21. The parties were agreed that in the event that the Tribunal accepted their joint position that the matter should be remitted to the First-tier Tribunal with no findings preserved.

Notice of Decision
1. The decision of First-tier Tribunal Judge Hands did involve the making of an error on a point of law.
2. The decision of Judge Hands is set aside, with no findings preserved.
3. The matter is remitted to the First-tier Tribunal to be heard afresh at Glasgow by a Judge other than Judge Hands.

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2025

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email