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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005759
	First-tier Tribunal No: PA/50339/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

 

 

Between

 

DB

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Quee & Mayanja, Solicitors

For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

 

Heard at Field House on 12 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. I make an anonymity direction because this appeal arises from the appellant's protection claim.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Fox, promulgated on 28/10/2024, which dismissed the Appellant's appeal.

 

Background

3. The Appellant is a national of Sierra Leone who was born on 30/07/1973. On 19/02/2021 he made an application for international protection on the basis of his political opinion. The respondent refused his application on 20/12/2023.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. On 29/10/2024, First-tier Tribunal Judge Fox ("the Judge") dismissed the appeal on all grounds.

5. The Appellant lodged grounds of appeal, and, on 16/12/2024, Tribunal Judge Turner granted permission to appeal. She said

 

2. The grounds assert that the Judge erred in failing to deal with unchallenged evidence, namely the warrant of arrest. Whilst various documents are referred to in the determination, the IJ fails to address whether the documents are accepted as genuine or reliable, nor does the IJ indicate if and why the documentation is rejected. If the documents are accepted, the determination fails to engage with any risk on return on account of said warrant. The determination also arguably sets too high a burden on the Appellant in referring to a lack of corroboration, contrary to the guidance set on MAH (Egypt).

3. It is also argued that as per paragraph 47 the IJ made findings not open to them to reach. It is argued that the veracity of the letter referred to at paragraph 47 was never challenged by the Respondent yet the IJ concluded that the document could not be relied on post the hearing without giving the Appellant an opportunity to address any concerns. This is a further arguable error of law.

4. Overall, the Appellant has identified arguable errors of law and permission to

appeal is granted.

 

The Hearing

6. The appellant's solicitor moved the grounds of appeal. He reminded me that it is accepted that the appellant is a member of the APC. He explained that the appellant produced an arrest warrant which goes without challenge, and although that arrest warrant was tendered before the First-tier Tribunal, the Judge made no findings in relation to the warrant. He said that the Judge's reasoning is devoid of consideration of the risk on return to Sierra Leone created by the extant warrant.

7. Relying on MAH (Egypt) v SSHD [2023] EWCA Civ 216, the appellant's solicitor took me to [45], [46], [47], and [51] of the decision and said that the Judge goes in search of corroboration and in doing so applies too high a standard of proof. He told me that at [47] the Judge draws conclusions from a point which was not put to the appellant.

8. The appellant's solicitor argued that the decision contains material errors of law and must be set aside.

9. For the respondent, Ms Ahmed told me that ground one was no longer resisted, and although ground 2 was still opposed, the next procedural step in this case was the more pressing consideration.

10. In relation to ground 2 Ms Ahmed resisted the appeal. She said that the grounds of appeal amount to nothing more than disagreements with findings made by the Judge. She said that a fair reading of the entirety of the decision demonstrates that the Judge applied the correct standard of proof, and although he used the word " corroborates" he was not searching for corroboration. The Judge could have used more neutral language such as " supports" or " gives weight to" when discussing various strands of evidence.

11. Ms Ahmed asked the tribunal to consider whether or not any of the findings of fact could be preserved, but candidly said there was a possibility that the view would be taken that the error in law in failing assess the risk on return in light of an unchallenged arrest warrant may infect the rest of the Judge's findings in fact.

Analysis

12. Everyone agrees that the appellant is a Sierra Leonean national and a member of APC. It is accepted that the appellant produced a warrant for his arrest. The appellant's solicitor still has the original document together with the envelope it was delivered in. The respondent does not challenge that arrest warrant.

13. The arrest warrant is a crucial part of the foundation of the appellant's claim. In summarising the appellants evidence the Judge mentions the arrest warrant at [21] of the decision.

14. The Judge's findings of fact are between [41] and [56] of the decision. The Judge makes no mention of the arrest warrant in his findings of fact. The Judge does not consider whether the existence of an extant arrest warrant creates a risk to the appellant on return to Sierra Leone. The Judge fails to consider a crucial part of the appellant's case.

15. The Judge's general reasoning dwells on inconsistencies in the various strands of the appellant's evidence, but his findings and reasons do not engage with the fact that the foundation of the appellant's claim is (in part) rooted in an unchallenged arrest warrant.

16. The result is that there is an inadequacy in the findings of fact. That is a material error of law. The respondent now accepts that the decision is tainted by that material error of law.

17. There is merit in the second ground of appeal. The second sentence of [46] of the decision says that a letter of support does not corroborate the appellant's account. That is the language the Court of Appeal was uncomfortable with in MAH (Egypt). Ms Ahmed was correct to say that the Judge could have used more neutral language, but he did not. The objective reader is faced with the language the Judge used.

18. At [47] the Judge might be following the principles set out in Tanveer Ahmed, but he does not explicitly do so. Instead, the Judge expresses his own opinion of the appearance of a document and places weight on matters which were not put to the appellant for comment.

 

19. Use of the word corroborate at [46], and the Judge's opinion at [47], which was not put to the appellant, must be viewed against the fact that the Judge's consideration of the evidence ignores the unchallenged arrest warrant.

 

20. The Judge's failure to deal with the unchallenged arrest warrant infects his fact-finding exercise. As a result, none of the findings of fact can stand.

 

21. Because the decision is tainted by a material error of law it is set it aside.

 

22. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal

23. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25 ^th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

24. The case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.

25. This case is remitted to the First-tier Tribunal sitting at Hatton Cross to be heard before any First-tier Judge other than Judge Fox. A Krio interpreter will be required.

Decision

The decision of the First-tier Tribunal errs materially in law.

The Judge's decision dated 28 October 2024 is set aside .

The appeal is remitted to the First-tier Tribunal to be determined of new.

 

 

S igned Paul Doyle Date 13 February 2025

Deputy Upper Tribunal Judge Doyle