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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005586
	First-tier Tribunal No: PA/53742/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HOFFMAN

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

M Y

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mrs A Nolan, Senior Presenting Officer

For the Respondent: Ms A Radford, Counsel, instructed by Sriharans Solicitors

 

Heard at Field House on 6 February 2025

 

Order Regarding Anonymity

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

 

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court .

 

 

DECISION AND REASONS

 

1.              The Respondent (appellant below) is a Somali national, he was born on 25 August 1994.

2.              The Secretary of State for the Home Department ("SSHD") appeals with the permission of First-tier Tribunal Judge D Hollings-Tennant which was given on 4 December 2024 against the decision of First-tier Tribunal Judge Hena ('the judge') dated 28 May 2024, in which the judge allowed the Respondent's appeal on asylum grounds, on humanitarian protection grounds and on human rights grounds.

3.                The Respondent was granted anonymity before the First-tier Tribunal because he has made a claim for international protection. Having taken into account  Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, I am satisfied that it is appropriate to continue that order because the UK's obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice in this case.

Background

4.              On 15 June 2021 the Respondent made a protection claim (asylum application). He claimed that he fears persecution if returned to Somalia on account of his fear of Al Shabaab. He stated that they approached him in 2018, and they asked him to join them. He stated that he refused and was assaulted, sustaining a broken wrist. The Respondent stated that in 2019, he was travelling with his uncle to Mogadishu by road. Their truck was intercepted by members of Al Shabaab and his uncle was assaulted and shot dead. The Respondent subsequently fled Somalia.

5.              The SSHD refused the Respondent's application by letter sent on 13 June 2023. The SSHD was not satisfied that the Respondent qualified for grant of permission to stay in the United Kingdom on the requested grounds of refugee status, humanitarian protection on the basis of his family and private life or discretionary leave. In summary, the SSHD maintained that there were inconsistencies in the Respondent's account that affected his credibility.

6.              The Respondent appealed the decision against refusal on 23 June 2023. The SSHD undertook a review of the refusal decision and by letter dated 30 November 2024, maintained the decision and reasons for it.

The Appeal to the First-tier Tribunal

7.              The judge heard the Respondent's appeal on 19 March 2024 and allowed it by decision and reasons sent on 28 May 2024. Insofar as is relevant, the judge stated:

6. However, [the SSHD] do not accept that the appellant is at risk from Al Shabaab due to the inconsistencies in his evidence. They say that events the appellant describes taking place cannot have happened if he left Somalia in July 2019. Further to this they say there are a number of inconsistencies between his witness statement and his interview e.g. saying 3 members of Al Shabaab killed his uncle in his asylum interview and in his witness statement he set out that 2 members killed him.

13. The appellant was unable to adopt his witness statement from March 2022 which was his first witness statement as he said he signed it without it being read back to him. It was submitted it may have been why the second witness statement went through his account and then dealt with the respondent's decision letter.

14. The appellant adopted the second witness statement and requested the Tribunal to ignore the first witness statement.

22. The respondent's position as to inconsistencies is largely based on the appellant appearing contradictory in his asylum interview and his first witness statement.

23. However, I accept the appellant's evidence that this witness statement was never read back to him, he was told to sign it and take it home and read it. The Tribunal was asked not to consider this as part of the appellant's evidence. I will consider the appellant's account in his asylum interview, oral evidence and his second witness statement only.

24. The respondent maintained that the appellant was inconsistent, they feel the second witness statement did not address the inconsistencies in the reasons for refusal letter.

30. Whilst the respondent continued to maintain their position in the decision letter and review, given the appellant's revelation regarding his first witness statement I find that some of the inconsistencies have fallen away as that witness statement was not read back to him. With regards to the appellant's oral evidence, I did not find him to be so inconsistent that he does not meet the low standard of proof in such cases. I find that he has been consistent in his account that he resided with his uncle for 5 years and only 3 of those has he worked with him.

34. With regards to the medical evidence, it would have been helpful, in light of the evidence, for there to be a report about the age of the injury and possible causes. However, what is clear is that appellant has a historic injury that appears to be accepted to have occurred as he has described, by a hammer. Whilst the evidence is lacking, I find that he has been a consistent witness and the limited evidence on his injury supports the appellant's account that Al Shabaab were the ones to have attacked him with a hammer.

8.              The SSHD appealed to the Upper Tribunal by notice dated 3 June 2024. Permission was granted by First-tier Tribunal Judge D Hollings-Tennant on 4 December 2024.

The Appeal to the Upper Tribunal

9.              There was a 336-page consolidated pdf appeal hearing bundle which included:

9.1   the Respondent's 17 paragraph witness statement dated 8 March 2022 [198 - 202] (First statement); and

9.2   and an expanded 35 paragraph witness statement dated 25 August 2023 [60 - 64] (Second statement).

 

10.          At the outset of the hearing, Mrs Nolan confirmed that the 2 grounds of appeal were being maintained. In summary, the grounds were that the judge erred in the following respects:

10.1             Failure to provide reasons or any adequate reasons for findings on material matters relating to the exclusion of the First statement.

10.2             Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings. This related to excluding the First statement.

 

11.          No Rule 24 response was filed or served. However, at the hearing Ms Radford, Counsel for the Respondent, made it clear that the appeal was opposed.

12.          In respect of ground 1 Mrs Nolan submitted that the judge could not properly maintain that the inconsistencies identified in the SSHD's decision letter had fallen away when she had not even looked at it. There was therefore no objective basis to put it aside.

13.          Mrs Nolan continued that the judge erred in not providing reasons why the Respondent's account, that his First statement was not read back to him, was accepted given that both statements were submitted by the same firm of solicitors, Sriharans Solicitors. The grounds of appeal to the First-tier Tribunal dated 23 June 2023, state that the Respondent would submit a detailed witness statement but the grounds did not indicate that the First statement was unable to be adopted due to being signed without it being read back to the Respondent or otherwise [28].

14.          Further the Second statement does not indicate that the First statement could not be adopted because it had not been read back to the Respondent.

15.          There was no corroborative witness statement from the Respondent's solicitors confirming that the First statement had not been read back to the Respondent before he signed it.

16.          Finally, there was no reference to any oral evidence addressing the alleged differences or inaccuracies in the First statement for the judge to assess and consider.

17.          Therefore, the Respondent's assertions in respect of being unable to rely on the First statement were unsupported and it was necessary for the judge to provide reasons why she accepted the Respondent's assertions in this regard in the absence of corroboration. Mrs Nolan submitted that failure to do so amounted to a material error of law particularly given the judge's findings at paragraph 30 ' that some of the inconsistencies have fallen away as that witness statement was not read back to him'.

18.          In respect of this ground of appeal Ms Radford contended that there was no material error of law. She emphasised that there was no requirement for the judge to provide detailed findings R (Iran) & Ors v SSHD [2005] EWCA Civ 982 per Brooke LJ at paragraphs 13 to 15. Ms Radford also referred to the SPT Practice Statement for IAC appeals dated 1 November 2024 relating to the scope and detail of reasons.

19.          Ms Radford submitted that when properly considered there was no basis for the SSHD's appeal. Reasons were given by the judge and the Respondent's evidence was accepted. Ms Radford asserted that the Respondent was not cross examined on the evidence given relating to why he could not adopt his First statement. In these circumstances Ms Radford stated that it was enough for the judge to simply state, as she does at paragraph 23, that she accepts that the Respondent's evidence that the First statement was never read back to him and that he was told to sign it and take it home and read it.

20.          Ms Radford continued by submitting that in any event, there were no inconsistencies between the Respondent's First and Second statement and, save for providing further detail, the substance of both statements were the same. In particular, in respect of the key alleged inconsistencies and credibility that the SSHD referred to in refusing the Respondent's application the following was clear:

20.1             In relation to when the Respondent left Somalia this is stated at paragraph 13 of the First statement and paragraph 20 of the Second statement.

20.2             In relation to the length of time the Respondent worked for his uncle this is stated at paragraph 6 of the First statement and paragraph 11 of the Second statement.

20.3             In relation to how many people killed his uncle, this is stated at paragraph 11 of the First statement and paragraph 28 of the Second statement.

20.4             In relation to being worried about transporting explosives, this is stated at paragraph 7 of the First statement and paragraph 14 of the Second statement.

21.          Ms Radford submitted that this was not a case involving wholescale change in evidence. The Respondent's Second statement was consistent with providing the full story and why there was no full story in First witness statement. Given the nature of change and the fact that there was no specific challenge about credibility at the hearing, the judge was entitled to simply state that she believed the Respondent without need for corroborative reasons.

22.          At paragraph 30 the judge states that she did not find the Respondent to be so inconsistent that he does not meet the low standard of proof in such cases. Ms Radford submitted that the judge makes clear findings relating to the issues of credibility at paragraphs 30 - 36 of the decision. The reasons given are adequate for the parties to understand why the judge came to the reason on key matters given the low standard of proof.

23.          Ms Radford emphasised that the judge did not conclude that there were no inconsistencies by the Respondent but that the Respondent was not so inconsistent. There was therefore no error of law in this regard.

24.          In relation to ground 2, Mrs Nolan submitted that by excluding any reference to the First statement the judge made a procedural error that made a material difference to the outcome and the fairness of the proceedings. It was submitted that this was a procedural irregularity as there being no valid basis to exclude the First statement, especially given that it formed part of the factual matrix for the SSHDs decision to refuse the Respondent's application in the first place.

25.          Mrs Nolan submitted that there was no corroborative evidential basis for the First statement to be excluded from the Tribunal's consideration and that this was material to the overriding objective to ensure a fair hearing. The judge clearly excluded part of the evidence relied on by the SSHD and this was procedurally unfair. Further, there was no analysis of why the Respondent's claim that he was unable to adopt his First statement. There was no explanation of why it was appropriate for the evidence to be excluded instead of being considered in the round.

26.          Mrs Nolan submitted that this was a material failing and the determination is unsafe. The judge's findings flow from the exclusion of evidence rather than a full consideration of all the relevant and available evidence. In particular, it was submitted that this irregularity resulted in the flawed finding at paragraph 30 of the decision where the judge states given the appellant's revelation regarding his first witness statement I find that some of the inconsistencies have fallen away as that witness statement was not read back to him. If the judge was clear of the position that there was not, as alleged by Ms Radford any substantive difference between the First and Second statement the finding of inconsistencies 'falling away' for the reasons given could not have been reasonably sustained.

27.          Ms Radford stated that there was no material error. The SSHD did not object to the exclusion of the First statement at the time. Further, the judge gave adequate reasons and clearly addressed all of the SSHD concerns regarding inconsistencies and credibility between paragraphs 30 - 36 of the decision. Mrs Radford emphasised that all the material facts that were included in the First statement also appeared in the Second statement which the judge fully considered and if there was an irregularity in excluding the evidence it was not material.

28.          However, Ms Radford did not address Mrs Nolan's submission as to why the Respondent stated that he was unable to adopt his First statement at the First Tier Tribunal given that Ms Radford was now contending that it was effectively the same in substance as the Second statement.

The Legal Framework

29.          The Upper Tribunal is confined to considering whether there are errors of law in FtT decision. In R (Iran) & Ors v SSHD [2005] EWCA Civ 982 Brooke LJ summarises what amounts to an error of law at paragraphs 9 and 10

9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;

v) Making a material misdirection of law on any material matter;

vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

 

10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. This need to identify an error of law which would have made a material difference to the outcome...

 

30.          Ms Radford referred to the following paragraphs of R (Iran)

13. The second preliminary matter is this. Adjudicators were under an obligation to give reasons for their decisions (see reg 53 of the Immigration and Asylum Appeals (Procedure) Regulations 2003), so that abreach of that obligation may amount to an error of law. However, unjustified complaints by practitioners that are based on an alleged failure to give reasons, or adequate reasons, are seen far too often. The leading decisions of this court on this topic are now Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409. We will adapt what was said in those two cases for the purposes of illustrating the relationship between an adjudicator and the IAT. In the former Griffiths LJ said at p 122:

 

"[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."

 

14. In English Lord Phillips MR said at para 19:

 

"[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]'s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."

 

15. It will be noticed that the Master of the Rolls used the words "vital" and "critical" as synonyms of the word "material" which we have used above. The whole of his judgment warrants attention, because it reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings.

 

31.          Ms Radford referred to the guidance in recent SPT Practice Statement for IAC appeals dated 1 November 2024, paragraph 15 to the effect that it is not in the interest of justice for written reasons should not be over lengthy and only issues in dispute need to be referred to.

32.          The SSHD's grounds of appeal referred to the case of Budhathoki (reasons for decisions) [2014] UKUT 341 (IAC), in which the Upper Tribunal found at paragraph 14:

"We are not for a moment suggesting that judgments have to set out the entire interstices of the evidence presented or analyse every nuance between the parties. Far from it. Indeed, we should make it clear that it is generally unnecessary, unhelpful and unhealthy for First-tier Tribunal judgments to seek to rehearse every detail or issue raised in the case. This leads to judgments becoming overly long and confused. Further, it is not a proportionate approach to deciding cases. It is, however, necessary for First-tier Tribunal judges to identify and resolve the key conflicts in the evidence and explain in clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost."

Conclusions

33.          In relation to ground 1, considering R (Iran) we conclude that the failure by the judge to give reasons why she accepted that the First statement should be excluded meant she did not adequately explain or engage with the relevant background, including having continued consistent legal representation and the failure to explain that the First statement had not been read back to the Respondent in his grounds of appeal or Second statement,. Rather than assisting the Respondent, then passages from R (Iran) quoted by Ms Radford in her submissions supports our view that the judge failed to give sufficient reasons to enable us to understand how she reached her finding. As the judge was aware, the purported inconsistencies between the contents of the First statement and the answers the Respondent gave during his asylum interview were central to the SSHD's decision to refuse asylum. In these circumstances we are satisfied that the judge should have provided reasoning on this issue and simply stating that she accepted the Respondent's evidence amounted to a failure to give adequate reasons for findings on a material matter.

34.          We are satisfied that the judge's conclusion at paragraph 30 of the decision that the 'inconsistencies fall away' given the 'revelations' about the First statement could not have been properly concluded if she were aware, as was submitted to us by Ms Radford, that the Second statement was simply a fuller version of the First and, therefore, it made no difference that the First was excluded. However, there were changes made in the Second statement on key issues that had been raised by the SSHD in her decision and, therefore, the contents of the First statement were relevant to the appeal.

35.          As we have allowed the SSHD's Ground 1 we do not need to go on to consider Ground 2, which essentially argues the same point in a slightly different way .

 

36.          Therefore the appeal on Ground 1 succeeds and the decision is set aside on this grounds.

 

Remaking

 

37.          The Respondent will be required to give oral evidence again and substantial fact-findings will need to be made. Both parties submitted, and we accept, that it is appropriate to remit this matter to the First-tier Tribunal for a hearing de novo, see, AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC).

Notice of Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

We set aside the decision of the First-tier Tribunal.

We remit the case to the First-tier Tribunal at Birmingham to be heard by a different judge, with no findings of fact preserved.

 

Benjimin Burgher

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

11 February 2025