United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-004522
	First-tier Tribunal No: PA/56808/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE P. LEWIS

 

Between

 

MB

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr. Wood

For the Respondent: Mr. Walker, Senior presenting officer.

 

Heard at Field House on 6 February 2025

 

Order Regarding Anonymity

 

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

Background

1.              The appellant is a citizen of Cameroon who appeals with permission against the decision of First-tier Tribunal Judge Kempton ['the judge'] dated 5 ^th August 2024 on two grounds:

(i)             The judge's decision was procedurally unfair;

(ii)           The judge failed to take account of material factors.

Chronology

2.              The appellant entered the UK using her own passport on 7 ^th February 2020. She claimed asylum in August 2020. Her application was refused and her appeal to the First-tier Tribunal was heard in 2022 by Judge Dilks ['the first appeal'].

3.              The appellant's case was that she fears persecution on account of her imputed political opinion as a Francophone from Cameroon who has been identified as an Anglophone during her married life as her husband was an Anglophone. She is of Bamileke ethnicity.

The first appeal

4.              In support of her claim the appellant relied on the accounts from three witnesses. All three witnesses' accounts were in the form of an affidavits signed in the presence of and attested to by a Notary Public.

5.              The appellant's appeal was dismissed by Judge Dilks on 6 ^th December 2022. In doing so Judge Dilks' placed 'little weight' on the statements of the witnesses for the reasons set out below:

...

[61]. The appellant has also provided witness statements from SM, who is said to be another trader at the market, AF said to be the appellant's neighbour and also a statement said to be from her brother. These statements refer to both claimed incidents.

[62]. Whilst the respondent takes the point in the refusal letter that the statements of SM and AF mention an off-licence whereas a takeaway store was referred to in the asylum interview, I am consider(sic.) that it is reasonably likely that this is a matter of terminology rather than inconsistency.

[63]. However, as stated by the respondent, there are no identity documents accompanying these statements and I place little weight on them.

6.              After her claim was refused, the appellant made further submissions to the respondent under cover of a letter from her legal advisors dated 26 ^th May 2023. That letter encloses a statement consisting of 12 relatively short paragraphs from the appellant dated 26 ^th May 2022. The statement does not address the findings of Judge Dilks (above) as to the reliability of the witnesses'

The second appeal

7.              The respondent's further submissions were refused on 31 ^st August 2023. She appealed and her matter came before Judge Kempton ['the second appeal'].

8.              In preparation for the second appeal the appellant uploaded an 'appeal bundle' on 10 ^th May 2024 to the Tribunals digital case system. On 16 ^th May 2024, the appellant provided A supplementary bundle containing copies of the identity cards of two of the witnesses FA and MS together with the note:

'... We therefore ask that the evidence be admitted and the Respondent be directed to review the case.'

9.              In response to the note, a Legal Officer of the Tribunal directed the Respondent to review the case by 14 ^th June 2024.

10.          Later than directed, that is to say on 30 ^th June 202,4 the Respondent completed its review. Relevant extracts from that document are reproduced below:

...

[8]. The appellant has also provided witness statements from SM, who is said to be another trader at the market, AF said to be the appellant's neighbour and also a statement said to be from her brother. These statements refer to both claimed incidents. 62. Whilst the respondent takes the point in the refusal letter that the statements of SM and AF mention an off-licence whereas a takeaway store was referred to in the asylum interview, I am consider that it is reasonably likely that this is a matter of terminology rather than inconsistency. 63. However, as stated by the respondent, there are no identity documents accompanying these statements and I place little weight on them.

...

[10]. The R has completed this review on the basis of all of the evidence available, and the R now expects this appeal to be listed and proceed on the documentation submitted to date. The R respectfully reserves the right to consider seeking a wasted costs order should fresh evidence be uploaded by the A's representatives which could have reasonably been submitted at the review stage.

11.          Judge Kempton applied the principles in Devaseelan [2002] UKIAT 00282 to the decision of Judge Dilks. As to the evidence from the appellant's witnesses before Judge Kempton the judge found:

[33]. The issue of the identity documents was raised in this appeal. Firstly, I note that there is a copy of an identity document said to pertain to the appellant's brother shown at page 44/455. That document appears to be a scanned copy of the card.

[34]. At pages 139 and 140/455 there are copies of the identity card of the appellant's neighbour and friend. It was pointed out to me by Mr Emmerson that these documents appear to have the facility to be altered as by hovering over the black coloured text on the cards such as the named of the persons they pertain to it is possible to highlight that text but not the light green text. He was of the view that this indicated that these were not genuine documents and rather than they are documents which have been altered. In addition, Mr Emmerson pointed out that the identity document on page 140 where there is a smaller version of the photograph, appears not to have the foil effect which would be expected on the smaller photo. He thought that the photo appeared to show evidence of editing. His view was that the appellant had not demonstrated that the documents are reliable. Hence it is not possible to demonstrate that these individuals even exist.

[35]. Mr Wood on the other hand was of the view that Mr Emmerson had 'entered in the arena' in that regard by effectively giving evidence himself.

[36]. I note the respective positions of each of the representatives. I see what Mr Emmerson means by the text on the cards now produced. I can also compare it with the identity card produced for the appellant's brother at page 44/455. There is a difference in that, it is not possible to hover over and highlight any text on the card pertaining to the appellant's brother. I simply note this as an observation.

[37]. Before me there is no document verification report commissioned by the respondent with regard to the veracity or otherwise of these documents.

[38]. Clearly the appellant was under some pressure to obtain such documents given those matters being a large part of the refusal of her previous claim. However, in the absence of any more information on the matter, I will regard these documents as neutral given that there is a difference in their appearance and digital characteristics which may or may not be relevant to the matter of whether or not genuine documents have been provided.

[39]. In the circumstances, I will regard the identity documents to be a neutral factor in the appeal. They have not furthered the appellant's case in any way.

12.          At the hearing, the parties confirmed that Mr. Emmerson's submissions as regards the reliability of the identity documents were made in his closing submissions and not sooner. Mr. Walker conceded that such submissions involved with withdrawal of a concession made by the respondent and that timing and nature of such concession did not allow the appellant an opportunity to address the issue. Thee judge's their finding(s) were contrary to a concession made by the respondent. It is agreed that Judge made a material error of law.

13.          The Upper Tribunal is not bound by the respondent's concession that the decision involved a material error of law. However, the fact that there is no dispute between the parties necessarily functions as an important factor in the assessment of whether there was procedural unfairness. For the reasons set out above, I am satisfied that the concession was properly made.

Disposal

14.          It was common ground between the parties that the appropriate disposal was for the matter to be remitted to the First-tier Tribunal to be decided de novo with no findings of fact preserved. I agree. The reason for my decision is that the appellant was denied a fair hearing in the first-tier Tribunal as a result of procedural unfairness.

Notice of Decision

1.        The decision of Judge Kempton, 5 ^th August 2024 contained a material error of law and is set aside.

2.        The appeal is remitted to the First-tier Tribunal to be dealt with afresh pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Kempton.

 

 

Paul Lewis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

10 ^th February 2025