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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005655
	First-tier Tribunal No: PA/51505/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE JOLLIFFE

 

Between

 

JWA

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr K Karue instructed by Titan Solicitors

For the Respondent: Ms A Everett, Presenting Officer

 

Heard at Field House on 4 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

 

1.              The appellant in this case is a national of Kenya, whose date of birth is 19 September 1965. She left Kenya in August 2009 and came to the United Kingdom. She had a 6 month visit visa, valid from 7 August 2009, and remained in the United Kingdom.

2.              On 23 January 2021 the appellant claimed protection on the basis that she is a lesbian and that she would be at risk of persecution if returned to Kenya. That claim was refused by the respondent in a decision dated 30 October 2023.

3.              The respondent accepted that she was a lesbian, but did not accept that her account was credible. The respondent relied on CPIN evidence that LGBTI persons or persons perceived as such were not at risk of treatment that would amount to persecution or serious harm. The respondent considered that there was sufficient protection from the police in Kenya, and that in any event internal relocation was available to the appellant.

4.              The appellant's appeal came before First-tier Tribunal Judge Abebrese on 28 August 2024. The judge refused the appeal. He considered that her delay in claiming asylum undermined her claim, despite the fact that her sexuality was not in dispute. He did not accept that she would be at risk of mistreatment, and considered that she could relocate internally. He also rejected her claim based on Article 8.

5.              The appellant sought permission to appeal, arguing that the judge had not considered the explanation for the delay in claiming asylum; had failed to consider material evidence and/or had given inadequate reasons; had considered the evidence about conditions in Kenya in a way that was inadequate; and regarding the Article 8 claim had failed to assess exceptional circumstances and whether there were very serious obstacles to the appellant's reintegration on return, and failed to consider evidence which was material to those issues.

6.              Permission to appeal was granted by First-tier Tribunal Judge Sills on 5 December 2024, who commented:

 

2. It is arguable that the Judge has given inadequate reasons for dismissing the appeal. Given that the Appellant's sexuality is not in dispute, it is unclear how her delay in claiming asylum, and lack of plausible explanation for this, 'undermines her claim fatally'.

3. For the reasons set out in the grounds, the Judge has arguably given inadequate reasons for the findings on risk on return.

4. All grounds may be argued

7.              Before the Upper Tribunal, Ms Everett for the Home Office conceded the First-tier Tribunal Judge had made an error of law in failing to make findings on relevant evidence that was before him, specifically in respect of the witness evidence, the expert evidence and on the appellant's risk on return to Kenya.

8.              When asked how the appeal should be disposed of in light of that concession, both Ms Everett and Mr Karue agreed that the errors of law were fundamental and affected the fairness of the hearing before the First-tier Tribunal. It was submitted that there were no properly made findings of fact which could be kept and so the appeal should not stay in the Upper Tribunal, and instead should be remitted to be redetermined afresh by a different judge of the First-tier Tribunal.

9.              Having reviewed the judgment, I agreed that the findings which had been made were affected by errors of law, and that the correct course of action was for the appeal to be reheard by another judge of the First-tier Tribunal.

10.          The appellant's solicitors filed the appeal bundle was filed with the Upper Tribunal on Friday 31 January 2025, in advance of the appeal which was listed for Tuesday 4 February 2025. This is in breach of the Principal Resident Judge's standard directions, which were promulgated on 25 September 2023.

11.          The standard directions for parties to an appeal to the Upper Tribunal require that the bundle should be filed not less than 10 working days in advance of the hearing, and impose certain requirements about the form and content of the bundle.

12.          These rules were not complied with. They exist for the good administration of appeals, and are for the benefit both of the parties and the judge. Failing to comply with them is serious, and it should not happen again.

Notice of Decision

 

13.          The appeal is allowed by consent.

14.          The appeal is remitted to be determined by the First-tier Tribunal

 

 

John Jolliffe

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 February 2025