Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005071
First-tier Tribunal No: PA/58389/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of February 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

F U (RWANDA )
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S McKenzie, Senior Presenting Officer
For the Respondent: Mr Krushner, Counsel instructed by direct access

Heard at Field House on 14 January 2025

ANONYMITY ORDER

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant.

Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. Although the Secretary of State for the Home Department (“the Secretary of State”) is the appellant before us, we shall use the terms the Secretary of State and refer to FU as the appellant as that is what she was when she appeared before the First-tier Tribunal.

2. The Secretary of the State appeals a decision of First-tier Tribunal Judge Sweet (“the Judge”) allowing the appellant’s appeal by a decision dated 26 July 2024.

Anonymity Order
3. The Judge issued an anonymity order. Neither representative requested that the order be set aside. As the appellant currently seeks international protection, we consider that at the present time her private life rights, protected by Article 8 ECHR, outweigh the public right to be informed that she is a party to these proceedings. The latter right is protected by Article 10 ECHR. In the circumstances, we consider it appropriate that the anonymity order continue.

4. The anonymity order is detailed above.

Relevant Facts
5. The appellant’s nationality is disputed. She claims that she is a national of the Democratic Republic of the Congo (‘DRC’) and the Secretary of State maintains that she is a Rwandan national. The appellant arrived in the UK with a short-term work visa in November 2018. She applied for asylum in June 2019. That application was the subject of the First-Tier Tribunal decision the Secretary of State is seeking to challenge in this appeal to the Upper Tribunal.

Grounds of Appeal
6. The Secretary of State advanced two grounds of appeal:
(i) The Judge materially erred in finding the Secretary of State accepted that if the appellant was a national of the DRC she would be at risk of persecution in Rwanda.
(ii) The Judge had failed to adequately explain why he had accepted that the appellant was from the DRC when she had arrived in the UK with a Rwandan passport.

7. By a decision dated 31 October 2024, First-tier Tribunal Judge Parkes granted the Secretary of State permission to appeal on both grounds.

Submissions
8. As to ground one Mr Krushner submitted that paragraph 6(iii) of the Secretary of States’s review could be understood to be a concession. That paragraph did not actually state a Convention reason but instead referred to the risk of racial prejudice. Mr Krushner acknowledged that paragraph 7(iii) clearly stated that the Secretary of State disputed that the appellant would be at risk in Rwanda, but it was submitted that that was inconsistent with paragraph 6(iii).

9. With regard to ground 2, Mr Krushner further submitted that the credibility findings made by the Judge were open to him on the evidence before him. He accepted that the appellant had a genuinely issued Rwandan passport, but the appellant had provided an explanation for how she had obtained this. He accepted that the Judge had not dealt with Hussain (Status of passports: foreign law) [2020] UKUT 00250. However, considering the appellant’s explanation as to how she obtained her passport, the Judge may have reached the same conclusion.

10. In reply Ms McKenzie submitted that the Secretary of State had discharged the burden on her to establish that the appellant was a Rwandan national. Further, as argued in the grounds, it was clear that paragraph 6 (iii) of the review was merely stating that the appellant’s claimed fear would fall under the Refugee Convention category of race. She acknowledged that the review should have stated race rather than racial prejudice and further accepted that the respondent had not specifically relied on the authority of Hussain or provided a copy of the appellant’s passport and Visa Application Form (VAF).

Discussion
11. At the conclusion of submissions, we informed the parties that the First-tier Tribunal's decision was properly to be set aside in its entirety for material error of law. We explain our reasons below.

Ground 1
12. The Judge stated at paragraph 9 of his decision:
“In the Home Office review it was accepted that if the appellant was from DRC, she cannot live safely in Rwanda due to the ongoing presence of the Congolese still actively pursuing and killing Banyamulanges who fled from DRC to Rwanda.”

13. At paragraph 6(iii) of her review, to be found in a section titled "Nationality and whether a Convention reason applies", the Secretary of State stated:
“If it were accepted that the A is from Congo, the R would accept the A’s submission that, “I can also not live in Rwanda safely due to the ongoing presence of the Congolese still actively pursuing and killing Banyamulenge’s who fled from Congo to Rwanda” (Detailed Account of my Story - FU.docx) falls under the refugee convention category of racial prejudice.”

14. We are satisfied that the Secretary of State was merely stating in this paragraph that should it be accepted that the appellant was from the DRC that her fear of return to Rwanda would comprise a Refugee Convention ground. We accept that the Secretary of State should have recorded that ground as race rather than racial prejudice, but do not accept that that error renders that paragraph open to another interpretation.

15. Further, the Secretary of State has reiterated her position at paragraph 7(iii) of the review where it is stated:
“In the alternative, that it is accepted the A is from Congo and a member of the Banyamulenge (Abanyabyishi) tribe, their claims that they cannot live in Rwanda safely due to the ongoing presence of the Congolese still actively pursuing and killing Banyamulenge’s who fled from Congo to Rwanda” (Detailed Account of my Story - FU.docx)are also unsubstantiated and, as such, are not accepted.”

16. The Secretary of State has clearly stated there that it is not accepted that the appellant would be at risk on return to Rwanda if she was from the Congo. We are satisfied that if paragraph 6(iii) is read in the light of paragraph 7(iii), then it is abundantly clear that the Secretary of State was not making the concession upon which the appellant seeks to rely.

17. We therefore find that the Judge made a material error of law in understanding the Secretary of State had accepted, in any sense, that the appellant would be at risk in Rwanda.

Ground 2
18. We are satisfied that the Judge erred in not addressing the guidance in Hussain. This states at headnote 1 and 2:
A person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport.

The burden of proving the contrary lies on the claimant in an asylum case.

19. At paragraph 8 the Judge sets out that the appellant needs to establish her case to the lower standard and that the main issue in the appeal is the appellant’s nationality. He repeats that standard at the end of paragraph 9. As set out by the Judge in paragraph 8, the appellant claims to be a citizen of the DRC and the Secretary of State considers that she is from Rwanda because she has a Rwandan ID and passport. Having accepted that the appellant had a Rwandan passport and, at paragraph 1, accepting that she arrived in the UK with a work visa issued to her in her Rwandan passport, the Judge should have gone on to apply the authority of Hussain and consider her a Rwandan national, unless the appellant was able to prove to the contrary. The Judge was therefore wrong to start by applying the lower standard of proof to the appellant and has not given reasons for accepting her evidence and finding this to establish that she is a national of DRC.

20. We are satisfied that the incorrect application of the burden of proof and the failure to provide adequate reasons for the decision reached comprise a further material error of law.

Remittal
21. We are mindful of the presumption in paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers that appeals should be remade in the Upper Tier Tribunal and find that paragraph 7.2(b) applies. As Ms Mackenzie accepted, it is appropriate to remit this appeal to the First-tier Tribunal, in view of the lack of any adequate reasoning coupled with the failure to engage with the guidance in Hussain.

22. The First-tier Tribunal would be aided by submissions addressing the guidance provided in Hussain. The parties may consider it appropriate, if so advised, to file further evidence in relation to this guidance. We observe Ms McKenzie's proper observation that the First-tier Tribunal may be aided by the Secretary of State filing copies of the appellant's Rwandan passport, identity card and her visa application form, if they are on file

Notice of Decision
23. The decision of the First-tier Tribunal dated 26 July 2024 is set aside in its entirety consequent to material error of law.

24. The matter is remitted to the First-tier Tribunal sitting at Taylor House.

25. The decision is to be remade by a judge of the First Tier Tribunal other than Judge Sweet.

26. The anonymity order is to continue.

F Ripley
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 January 2025