Upper Tribunal (Immigration and asylum chamber), 2019-04-11, PA/12950/2018
| Jurisdiction | UK Non-devolved |
| Date | 11 April 2019 |
| Published date | 04 June 2019 |
| Hearing Date | 08 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/12950/2018 |
Appeal Number: PA/12950/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12950/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 April 2019 |
On 11 April 2019 |
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Before
UPPER TRIBUNAL JUDGE PITT
Between
IA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Butler, Counsel, instructed by Harrow Law Centre
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal against the decision issued on 19 December 2018 of First-tier Tribunal Judge G Jones QC which refused the asylum appeal of the appellant.
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the appellant from the contents of the protection claim.
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The background to this matter is that the appellant was born in Saudi Arabia to an Afghan family who had relocated some years prior to his birth. The appellant maintains that as he approached adulthood in Saudi Arabia he realised that he was gay and had two relationships with men. His sexuality was discovered by the father of one his partners who told his own family members. His asylum claim was based on a fear of mistreatment on the basis of his sexuality on return to Afghanistan.
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The appellant obtained a visa to come to the UK valid from 10 December 2017 to 10 June 2018. After coming to the UK as a visitor, he claimed asylum on 3 May 2018. His residency permit for Saudi Arabia expired on 11 July 2018. The respondent refused the asylum claim in a decision dated 29 October 2018. The same decision indicated that the appellant was entitled to humanitarian protection under which refer to leave under paragraph 339C of the Immigration Rules.
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The appellant appealed to the First-tier Tribunal and had a hearing on 10 December 2018. As indicated above, a decision dismissing his appeal was issued on 19 December 2018. The First-tier Tribunal found that the appellant was not gay and on that basis dismissed the asylum appeal. On 9 January 2019 the First-tier Tribunal granted permission to appeal to the Upper Tribunal.
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There were six grounds of appeal, none of which were expressly stated to have no merit by the First-tier Tribunal and which all fell to be addressed here, therefore. The grounds were summarised in paragraph 2 of the grounds of appeal:
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The judge failed to give any weight to the relevant evidence of Ms Nasim of UKLGIG, who worked with the appellant and confirmed his sexuality in her oral evidence at the hearing.
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The judge rejected the appellant’s attendance at UKLGIG meetings as “self-serving”.
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The judge made no reference to evidence submitted post-hearing, despite granting permission to the appellant to file those materials and a 63 page bundle being provided to the Tribunal on 14 December 2018, prior to the issuing of the decision.
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The judge sought to go behind the respondent’s grant of humanitarian protection, wrongly referring to it as “discretionary leave”.
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The judge refused to place any weight on the statements adduced on the appellant’s behalf by other witnesses who gave evidence to the effect that he was gay and in fear of family members.
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The reasoning was, in parts, speculative, in particular concerning whether the appellant’s father would disclose his sexuality to other family members given the shame of such a disclosure in a culture such as that in Afghanistan.
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It is expedient to address ground three first. It was accepted for the respondent at the hearing before me that the First-Tier Tribunal had agreed to further documents being submitted after the hearing and had provided the appellant’s legal representative with an email address in order for this to happen. The Presenting Officer’s note on the respondent’s file confirmed this to be so.
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The respondent also accepted that the additional materials had been sent in time for them to be considered by the First-Tier Tribunal before the decision was made. The Tribunal file contained a printout of an email from the appellant’s legal representatives sent to the judge and the respondent on 14 December 2018, exhibiting the further bundle comprising 63 pages. The Tribunal file also contains a hard copy of the 63 page supplementary bundle, sent under a covering letter dated 18 December 2018. The covering letter indicates that:
“Further to the hearing on 10/12/18 and as directed by First-tier Judge G Jones QC we now enclose the following:-
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Legal rep’s statement of truth (and annexes)
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Additional bundle of documents
We confirm that this documentation was served by email on 14.12.2018”.
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The respondent agreed with the grounds in so far as it was an error for the First-Tier Tribunal not to have taken these further materials into account. The ground was not conceded where it was not the respondent’s view that the further materials could have made a material difference to the outcome of the appeal.
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Procedural fairness requires that the totality of a case is considered by the decision maker. Here, having given express permission for further materials to be submitted, the First-Tier Tribunal did not take the additional materials into account. That is a procedural unfairness.
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Further, where deciding on the credibility of an asylum claim and a claim to be gay is necessarily a holistic assessment, it is not possible to find that the further materials would have had no effect on the outcome of the appeal. The new materials contained a witness statement from the appellant’s legal advisor confirming that it had not proved possible to access an old Facebook account showing the appellant together with one of his partners in Saudi Arabia. This witness statement went directly to the adverse findings made in [21]-[22] and [30(iv)] and it is not possible to say that it could not have affected those conclusions. The new material also included a statement from the appellant’s brother corroborating the appellant’s claim and directly addressing the actions of the father of one of the appellant’s partners and what his own family members had done after learning of the appellant’s sexuality. These issues were the subject of highly adverse findings by the First-Tier Tribunal at [25]-[26] and [30(iii)] and, again, the new material had the potential to lead to a different assessment.
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Lord Mustill stated that what fairness demands in any given case is dependent upon the particular context; R v Secretary of State for the Home Department, ex parte Doody and Others [1994] 1AC 531. I am satisfied that a requirement of procedural fairness here was for the new materials to be considered, additionally so where those materials were capable of leading to a different outcome.
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I therefore find an error on a point of law such that the decision must be set aside. As above, where the credibility assessment is a holistic exercise, it is not possible to preserve any of the credibility findings as the First-Tier Tribunal may have taken a different approach to other aspects of the evidence if all of the materials had been considered. The re-making of the decision is therefore de novo and where there are no findings of fact extant it is appropriate for it to take place in the First-Tier Tribunal.
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If more is needed, it was also my conclusion that other grounds of appeal had merit, for example, grounds one and two. At paragraph 30(vi) the judge stated that he placed no weight on the evidence of Ms Nasim from UKLGIG, finding that her evidence was “nothing more...
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