Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005872

First-tier Tribunal No: IA/03602/2021
(Formerly: PA/50417/2021)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE RHYS-DAVIES

Between

ST
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S. Panagiotopoulou of Counsel, instructed by Montague Solicitors
For the Respondent: Ms. S. Cunha, Senior Home Office Presenting Officer

Heard at Field House on 28 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity because he is an asylum seeker and the protection of his safety outweighs the presumption in favour of open justice.

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

DECISION AND REASONS

1. The Appellant is a Turkish citizen of Kurdish ethnicity. He claimed asylum as long ago as 12 October 2017. The Respondent refused his application on 18 January 2021. The Appellant appealed, in time. His appeal was heard by First-tier Tribunal Judge Bart-Stewart on 27 May 2022. Judge Bart-Stewart dismissed the appeal on all grounds in a Decision and Reasons promulgated on 20 June 2022.

2. The Appellant successfully appealed to the Upper Tribunal. Upper Tribunal Judge Owens remitted his case to the First-tier Tribunal for a de novo hearing on 8 November 2023.

3. The remitted appeal was heard by First-tier Tribunal Judge Alis on 23 January 2024. Judge Alis dismissed the appeal on all grounds in a Decision and Reasons promulgated on 7 February 2024. It is against Judge Alis’s Decision that the Appellant now appeals.

Background

4. The Appellant’s case is that he is at risk of persecution by the Turkish authorities on account of his own political opinion and activities for the HDP Party, and also because of his family’s involvement with the PKK and YPG.

5. Judge Alis made the following findings at [57] of his Decision:

(i) The Appellant is Kurdish;
(ii) The Appellant supports the aims of the Kurdish people in Turkey;
(iii) The Appellant was either a supporter or a member of the HDP in Turkey;
(iv) The Appellant was detained on three occasions but was released on each occasion without any conditions and he did not require or seek medical attention for any injuries said to have been received;
(v) The Appellant is not a person whom the authorities have an active interest in;
(vi) I do not accept the Appellant’s claim (sic) the authorities continue to visit his family home every three to four months;
(vii) There is no arrest warrant outstanding;
(viii) The Appellant has participated in activities in this country;
(ix) The Appellant does have family members who have come to the attention of the Turkish authorities albeit this was many years ago.

6. At [59], Judge Alis then applied these findings to the risk factors set out in IA and others (Risk-Guidelines-Separatist) Turkey CG [2003] UKIAT 00034 and concluded that the Appellant was not at risk of persecution.

7. The Appellant made an in-time application for permission to appeal. The consideration of his application was initially delayed because he filed it on MyHMCTS and the appeal before Judge Alis was being managed off-line, as a remittal. The Appellant resubmitted his application for permission to appeal on or about 14 March 2024.

8. For reasons that are unclear, the application was not considered until 9 December 2024, when permission was granted on all grounds by First-tier Tribunal Judge Mills.

9. The Upper Tribunal then made Directions to bring the appeal to a hearing before us.

10. The Respondent did not provide a r.24 response.

The Hearing

11. The Appellant’s solicitors uploaded to CE-File a consolidated bundle in two parts: “A” and “B”. Ms. Panagiotopoulou stated that a witness statement by the Appellant’s aunt had been omitted from that consolidated bundle, but this was available in the automatically generated bundle on MyHMCTS.

12. Regrettably, the consolidated bundle had not been provided to Ms. Cunha, but she was content to proceed as she had access to all relevant documents.

13. Ms. Cunha confirmed that the appeal was opposed.

14. The Grounds of Appeal were drafted by Ms. Panagiotopoulou and run to 12 paragraphs. 1-4 are introductory and 12 is a conclusion.

15. Ms. Panagiotopoulou grouped the remaining Grounds under four headings:

(i) Paragraphs 5 – 8: failure to provide sufficient reasons for findings;

(ii) Paragraph 9: failure to have regard to relevant considerations;

(iii) Paragraph 10: failure to have regard to, and to make findings on, the evidence of a Turkish lawyer;

(iv) Paragraph 11: failure to make any finding on the medical evidence relied upon regarding the Appellant’s mental health.

16. Ms. Panagiotopoulou elected to begin with the third Ground. The Appellant contends that the letter from his family’s lawyer in Turkey (at pp31-32 of Section B of the consolidated bundle) is material evidence to support his claim to be wanted by the authorities. She submitted that Judge Alis did not address this when reaching his finding that the Appellant is not of interest to the authorities.

17. Ms. Cunha initially sought to defend the Decision, pointing out that Judge Alis does refer to the lawyer’s letter at [32] of his Decision, where he summarises the Appellant’s submissions: “The authorities maintain an interest in him as evidenced by his own evidence and the letter from the local Mukhtar and family lawyer. Neither letter had been challenged. The latter letter also confirmed what the Appellant’s brother was imprisoned for”. Ms. Cunha acknowledged that [32] contains no analysis of the lawyer’s letter. She asked for time to find a passage in the Decision and Reasons containing such analysis, as she was confident one was present. We stood the appeal down for ten minutes.

18. Upon resuming, Ms. Cunha admitted that she was in error and that Judge Alis had not addressed the lawyer’s letter when making his findings. Ms. Cunha agreed that [54] of the Decision and Reasons, where Judge Alis considers the mukhtar’s letter, would have been the obvious place to address the lawyer’s letter also, but that it is not mentioned. Ms. Cunha conceded that the Judge’s failure to make findings on the lawyer’s letter amounts to a material error of law as it is a key piece of evidence on the issues of the credibility of the Appellant’s claim and the alleged risk on return. Ms. Cunha invited us to remit the appeal to the First-tier Tribunal, with no findings preserved.

19. Ms. Panagiotopoulou was content to accept the concession on material error, but was minded to argue that a re-hearing was unnecessary in light of Judge Alis’s acceptance of much of the Appellant’s case and the Respondent’s lack of challenge those positive findings.

20. The Appellant’s primary position was that the appeal ought to be allowed outright now, in light of the points Judge Alis had accepted, but that as an alternative there should be a limited hearing on the outstanding matters.

21. In reply, Ms. Cunha contended that a full rehearing was necessary given Judge Alis had not accepted that the Appellant was at risk despite finding he had been detained three times, had not accepted the medical evidence, and had not found that the Appellant was an HDP member.

22. Upper Tribunal Judge Blundell suggested that the advocates should consider the guidance set out in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 00268 (IAC). We stood the appeal down again to allow them to consider it.

23. Upon resuming once more, Ms. Panagiotopoulou had taken stock and now agreed with the Upper Tribunal’s provisional view that there were clear difficulties in attempting to determine the appeal based on the positive findings made by Judge Alis, given there would be no findings on such matters as: whether the Appellant had been released from detention without conditions on three occasions; whether there is any active interest in the Appellant now; and the extent to which the Appellant’s family history is relevant.

24. Ms. Panagiotopoulou also agreed that attempting to retain some of the positive findings was fraught with difficulty, given the extent of fact-finding that was still required. The Parties therefore agreed that a full re-hearing was necessary.

Decision

25. As we said at the hearing, we agree that Judge Alis erred in respect of the lawyer’s letter.

26. We can only find an error of law to be immaterial if satisfied that the outcome would inevitably have been the same had the error not been made: (IA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 323.

27. We are satisfied that the error is material. The lawyer’s letter is relevant evidence as to the question of whether the authorities have an ongoing interest in the Appellant and in his family. It is evidence that needed to be addressed when reaching findings on both past events and the claimed risk on return.

28. It was therefore not necessary to consider the remaining Grounds of Appeal.

29. We considered whether it would be appropriate to retain the case to remake the decision in the Upper Tribunal, particularly as the appeal has already been heard twice in the First-tier Tribunal. However, neither Party ultimately sought to retain any of the findings and we agree that none of the findings can be preserved. We take the view that the matter should be reheard on the basis of up-to-date evidence with no findings of fact preserved and that, in the circumstances, it is appropriate to remit the appeal to the First-tier Tribunal.

Notice of Decision

1. The appeal is allowed.

2. The Judge’s Decision involved the making of a material error on a point of law.

3. The appeal is remitted to the First-tier Tribunal (Taylor House) to be heard by a judge other than Judges Bart-Stewart or Alis, with no findings of fact preserved. Listing is matter for the First-tier Tribunal but, given the history, the Resident Judge at Taylor House may wish to ensure the remittal is heard by an experienced First-tier Judge.

A. Rhys-Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 March 2025